On Point blog, page 25 of 29
Due Process – Identification Procedure – Showup ID: Probable Cause Specific to Purpose of ID Unncessary
State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger
Issue/Holding:
¶2 The issue presented in this case is whether a showup identification is necessary, thus meeting the first test of admissibility under Dubose, when probable cause exists to justify an arrest of a suspect, but it does not exist on the particular offense under investigation. [3] We conclude that whenever probable cause exists to justify detention of a suspect,
Due Process – Identifcation Procedure – In-Court ID as Untainted by Impermissible Showup
State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger
Issue/Holding:
¶29 Having concluded that the showup identifications of Nawrocki were not necessary and therefore should have been suppressed, we next must address whether Albert’s and/or Gerhardt’s in-court identifications of Nawrocki were based on an independent source that was untainted by the impermissible showup identification. “[T]he exclusion of evidence of the out-of-court identifications does not deprive the prosecutor of reliable evidence of guilt.
Due Process – Restraints on Defendant in Courtroom – Sua Sponte Duty of Court to Investigate
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Once it became aware that the jail administrator was requiring that the defendant wear an armband taser device during the jury trial, the court, “the trial court had an affirmative, sua sponte duty to inquire into the necessity for the device,” ¶32. “The judge alone controls the courtroom and alone has the authority and the duty to make a restraint decision,” ¶34.
Jury Instructions – Conclusive Presumptions – Misconduct in Public Office, § 946.12(3), Elements of Duty and Intent
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10 Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);
Due Process – Identifcation Procedure – Photo Array: Analysis Unchanged by Dubose Show-up Standard<
State v. Ryan W. Drew, 2007 WI App 213, PFR filed 9/27/07
For Drew: Steven Zaleski
Issue/Holding: Analysis of admissibility of photo array ID remains unchanged by the new standard for show-ups set by State v. Tyrone L. Dubose, 2005 WI 126:
¶2 We conclude that Dubose did not alter the standard for determining whether admission of an out-of-court identification from a photo array violates due process.
Due Process – Right to Present Defense – Misconduct in Public Office, § 946.12(3) – Intent to Obtain Dishonest Advantage – Testimony of Long-Standing Legislative Practice
State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89,affirmed, 2005 WI 31
For Jensen: Robert H. Friebert, Matthew W. O’Neill
Issue/Holding:
¶36 We agree with the State that the testimony of Jensen’s defense witnesses as to the practices of both Democrats and Republicans in the legislature of using state resources for campaign purposes is not relevant to show whether Jensen intended to obtain a dishonest advantage by doing the same.
Distribution of Harmful Material to Children, § 948.11(2)(am) – Internet Chat Room Communication is “Verbal” Communication, within Statute
State v. Shawn B. Ebersold, 2007 WI App 232
For Ebersold: Lester A. Pines
Issue: Whether message sent via Internet chat room supports prosecution for § 948.11(2)(am), verbally communicating harmful material to child.
Holding:
¶9 In this case, the parties dispute whether Wis. Stat. § 948.11(2)(am) prohibits communication of a harmful description or narrative account to a child via an Internet chat message.
§ 903.03, Conclusive Presumptions — Generally
State v. Sherry L. Schultz, 2007 WI App 257; companion case: State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding:
¶9 In State v. Kuntz,
§ 903.03, Conclusive Presumptions – Limiting Language Required on Matters of Law as Well as Fact
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10 Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);
Impeachment with Post-Miranda Silence – Generally: Due Process Analysis
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶14 Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio,