On Point blog, page 24 of 29
Delinquency – Notice
State v. Justin H., No. 2009AP2935, District III, 6/29/10
court of appeals decision (1-judge; not for publication); for Justin H.: Leonard D. Kachinsky
¶9 However, even assuming Justin properly preserved a due process argument, we reject it. Due process principles require that a juvenile against whom a delinquency petition has been filed be given “notice … sufficiently in advance of scheduled court proceedings … set[ting] forth the alleged misconduct with particularity.” State v.
Failure to Comply with Sex Offender Registration, § 301.45
State v. James W. Smith, 2010 WI 16, affirming 2009 WI App 16; for Smith: Shelley M. Fite, SPD, Madison Appellate
The § 301.45 reporting requirement applicable to any violation of false imprisonment of a minor not the defendant’s child is rationally related to a legitimate government interest in protecting the public, particularly children, ¶¶27-36.
Keep in mind that Smith challenged the statute as applied to him.
State v. John A. Wood, 2010 WI 17
Wisconsin supreme court decision; below: certification; for Wood: Kristin E. Lehker; for amicus, Disability Rights Watch: Kristin Kerschensteiner; Supp. App. Br.; Supp. Resp.; Supp. Reply
¶13 A party may challenge a law or government action as being unconstitutional on its face. Under such a challenge, the challenger must show that the law cannot be enforced “under any circumstances.”
State v. Richard M. Fischer, 2010 WI 6, affirming 2008 WI App 152
supreme court decision; court of appeals decision; for Fischer: James M. Shellow, Robin Shellow, Urszula Tempska
Note: federal habeas relief was subequently granted, Richard M. Fischer v. Ozaukee Co. Circ. Ct., ED Wis No. 10-C-553, 9/29/10. Federal appellate and district court cases don’t bind Wisconsin courts, which therefore needn’t follow this habeas decision, e.g., State v. Mechtel, 176 Wis.
State v. Jerry L. Miller, 2009AP1509-CR, Dist I, 1/20/10
court of appeals decision (1-judge; ineligible for publication)
Statement against Interest, Exculpating Defendant
Against-interest statement exculpating defendant admissible. Declarant unavailable, given reasonable but unsuccessful efforts to subpoena. Contrary to trial court, statement not ambiguous but was direct admission of crime and corroborated by having been made to different people on different occasions.
Due Process – Judicial Vindictiveness – Resentencing (Following Successful Attack on Conviction), Generally
State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶8 Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969),
Due Process – Defendant’s Right to Testify – Retraction of Waiver – Offer of Proof Required
State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09
For Winters: Ralph Sczygelski
Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his proposed testimony, either at trial or on postconviction motion,
Due Process – Defendant’s Right to Testify – Exercise of Right: Knowing, Voluntary Waiver of Right Not to Testify
State v. Mark A. Jaramillo, 2009 WI App 39
For Jaramillo: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether the trial court must conduct a colloquy before a defendant testifies to determine whether waiver of the right not to testify is knowing and voluntary.
Holding:
¶16 We have previously noted that we do “not possess any supervisory authority which would permit [us] to promulgate rules of criminal practice and procedure.” State v.
Due Process – Notice of Charge – Sufficient to Allege Elements, Specific Acts Unnecessary
State v. Janet A. Conner, 2009 WI App 143, PFR filed 9/28/09
For Conner: J. Steven House
Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”
State v.
Closing Argument – Reference to Defendant’s Failure to Testify
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:
¶81 …
[F]or a prosecutor’s comment to constitute an improper reference to a defendant’s failure to testify,