On Point blog, page 30 of 68
State v. Jessica A. Nellessen, 2012AP150-CR, petition for review granted 10/15/13
Review of published court of appeals decision; case activity
Issue (composed by On Point)
Was Nellessen entitled to an in camera review under Wis. Stat.§ 905.10(3)(b) to determine whether an informant may be able to give testimony necessary to a fair determination of the issue of guilt or innocence, when the defendant claims she was unaware there were controlled substances in the trunk of her car,
State v. Muhammad Sarfraz, 2012AP337-CR, petition for review granted 9/17/13
Review of published court of appeals decision; case activity
Issue (composed by On Point)
Does Wis. Stat. § 972.11(2)(b)1. bar evidence of prior consensual sexual activity between a defendant and complainant in a case involving alleged forcible criminal conduct because the consensual conduct is not relevant to a material fact in the case?
Petitions for review are not electronically filed,
Right to confront and present evidence; probative value of evidence outweighed by prejudicial effect, § 904.03
State v. Damon R. Lowe, 2012AP555-CR, District 2, 9/18/13; court of appeals decision (not recommended for publication); case activity
Lowe, charged with sexual and physical abuse of V.A.L., his adopted daughter, sought to present evidence that she was motivated to fabricate her allegations because she wanted to get away from her overly strict father, who restricted her use of cell phones, her internet use, and her choice of friends.
More on probable cause to arrest for OWI
State v. George R. Ferrell, Appeal No. 2012AP2602, 9/26/13, (1-judge; ineligible for publication); case activity
A state trooper does not need evidence such as odors, admissions or containers to have probable cause to arrest for OWI. These facts will do the trick:
¶12 . . . [T]he State Patrol received several reports that Ferrell was driving erratically and dangerously. Thiede observed that Ferrell was speeding and watched Ferrell swerve within his lane.
Court of Appeals reverses 1st degree intentional homicide conviction based on State’s violation of § 904.10
State v. Raphfael Lyfold Myrick, 2013 WI App 123; case activity
Wow! District 1 is really on a roll. Twice in less than one week they’ve reversed a conviction for first-degree murder. Last Friday it was State v. Wilson, 2011AP1803, a summary reversal and hence not summarized by On Point. Wednesday, it was State v. Myrick, the subject of today’s post.
Right to a public trial. Lay testimony about events depicted on surveillance video.
State v. Amos L. Small, 2013 WI App 117; case activity
Right to a public trial
The circuit court appropriately excluded a person from the courtroom under State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, after the prosecutor asserted the had threatened a state’s witness after her testimony. (¶9). While Small’s lawyer objected to the exclusion of the person on the grounds it violated Small’s right to a public trial and was based on a hearsay statement,
Self-incrimination — requiring defendant to show physical characteristic to jury. Closing argument — state’s reference to defendant’s failure to call witnesses. Prior inconsistent statement — witness’s lack of recollection
State v. Ramon G. Gonzalez, 2012AP1818-CR, District 1, 7/23/13; court of appeals decision (not recommended for publication), petition for review granted, 1/19/14, affirmed, 2014 WI 124; case activity
Self-incrimination — requiring defendant to show physical characteristic to jury
Where inmate victim of battery by another prisoner identified one of his assailants as an inmate “with platinum teeth”
Ineffective assistance of counsel — failure to object to evidence. Circuit court’s discretion to admit other acts evidence and child victim’s video statement
State v. Roy H. Beals, 2012AP1079-CR, District 2/1, 7/9/13; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of counsel
Trial counsel in a sexual assault prosecution was not ineffective for failing to object to portions of two different video statements of the child victim (one from 2007, the other from 2009) because the evidence did not prejudice Beals. Trial counsel did object to the first 10 minutes of the 2007 video until after it had been played,
Wisconsin Supreme Court declines to overrule State v. Shiffra, but divides on remedy “in this case”
State v. Samuel Curtis Johnson, III, 2013 WI 59 (per curiam), affirming, as modified, an unpublished court of appeals opinion; reconsideration granted, 2014 WI 16 (per curiam); Justices Prosser and Gableman not participating; case activity
(Note: On July 22, 2013, both Johnson and the state filed motions for reconsideration of the court’s original decision;
Repeated child sexual assault, § 948.025: instruction on first degree child sexual assault as lesser-included; other acts evidence; date of offense; ineffective assistance of counsel
State v. Robert T. Warriner, 2012AP244-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity
Instruction on first degree child sexual assault as lesser-included of repeated child sexual assault
At trial the child testified that Warriner sexually assaulted her on only two occasions, so the trial court agreed, over Warriner’s objections, to read the instruction for first-degree sexual assault of a child, § 948.02(1).