On Point blog, page 1 of 1

COA rejects some interesting challenges to denial of suppression in OWI case

State v. Jennifer A. Jenkins, 2020AP1243-CR, 3/1/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

Jenkins, convicted of OWI 2nd, raised some interesting and unusual challenges to the trial court’s order denying her motion to suppress.  (1) The arresting officer’s testimony was incredible as a matter of law. (2) He unlawfully stopped her car outside of his jurisdiction. And (3) her blood draw was painful, inordinately long, and therefore unreasonable. The court of appeals rejected all of them.

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Defense evidence properly excluded for lack of foundation

State v. Scott F. Ufferman, 2016AP1774-CR, District 3, 11/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Ufferman complains the trial court’s evidentiary rulings improperly stymied his defense against the charge of operating with a detectable amount of THC. The court of appeals holds the trial court’s rulings were correct.

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Termination of parental rights affirmed despite lack of evidence regarding the “best interests of the child”

M.R.B. v. S.S., 2017AP1217-1219, 10/5/17, District 4 (1-judge opinion, ineligible for publication); case activity

This slim opinion delivers hard blows to a father resisting the termination of his parental rights. They concern circuit court competency, a request for a continuance, and the sufficiency of evidence in determining whether termination was in the best interests of his children. The court of appeals’ reasoning on the last point supplies fodder for a petition for review.

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Records that support claims defense counsel made at sentencing not enough to merit resentencing or sentence modification

State v. Anthony Herman Williams, 2014AP447-CR & 2014AP448-CR, District 1, 9/30/14 (not recommended for publication); case activity: 2014AP447-CR; 2014AP448-CR

Cell phone records that corroborate a claim Williams’s trial lawyer made at sentencing regarding contact between Williams and the victims don’t show that the sentencing court relied on inaccurate information because the records do little to corroborate the contact or support Williams’s version of events.

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Statements to police during ambulance ride, and later while cuffed to bed in ICU, deemed voluntary

State v. Stanley K. Bullock, 2014 WI App 29, case activity

How “voluntary” does this sound to you?

The defendant was convicted of 1st-degree reckless homicide for the stabbing death of his girlfriend.  He said that masked attackers broke into their apartment and stabbed him and his girlfriend.  He called 911.  The responding paramedics found the defendant conscious with stab wounds and his girlfriend dead.  During his ambulance ride to the hospital (and while experiencing pain and disorientation),

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Evidence – Moving Radar

Village of Marathon City v. Jenny L. Nowak, 2010AP462, District 3, 9/30/10

court of appeals decision (1-judge, not for publication); Resp. Br.

¶11      The five-factor Hanson/Kramer test is used to determine the accuracy of moving radar.[4] See Washington Cnty. v. Luedtke, 135 Wis. 2d 131, 133 n.2, 399 N.W.2d 906 (1987).  “If there is compliance with the Hanson/Kramer criteria,

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§ 902.01(2), Judicial Notice – Briefs Posted On-Line

State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate

Issue/Holding: The court may take judicial notice of public records, including material found in briefs available on-line, ¶24 n. 9.

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§ 902.01(2), Judicial Notice – Local Police P & P Manual

State v. Vanessa Brockdorf, 2006 WI 76, affirming unpublished decision
For Brockdorf: Martin E. Kohler, Brian Kinstler

Issue/Holding: ¶39 n. 6:

After oral argument and pursuant to an order dated October 14, 2005, the parties submitted to the court the relevant provisions of the MPD Policies and Procedures Manual. Pursuant to Wis. Stat. § 902.01, in our discretion,

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§ 902.01(2), Judicial Notice — Generally

State v. Leonard A. Sarnowski, 2005 WI App 48
For Sarnowski: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding:

¶13. Trial courts may take judicial notice in limited areas-“fact[s] generally known within the territorial jurisdiction of the trial court,” or “fact[s] capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Wis. Stat. Rule 902.01(2). Significantly, a court may not take judicial notice unless the parties have at some point “an opportunity to be heard.”

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§ 902.01(2), Judicial Notice — Reliance on, Ruling to Admit Evidence

State v. William R. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998)
For Peterson: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

A trial court sitting as fact-finder6 may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute,7 but it may not establish as an adjudicative fact that which is known to the judge as an individual.

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