On Point blog, page 13 of 15
Appellate Procedure: Harmless Error (Verdict Forms) – Waiver (Failure to Object to Testimony)
State v. Andre D. Hansbrough, 2011 WI App 79(recommended for publication); for Hansbrough: Amelia L. Bizzaro; case activity
Verdict Forms – Harmless Error
Failure to provide a not guilty verdict option with a lesser included offense instruction is, although error, not structural but is instead subject to analysis for harmlessness, ¶¶10-17.
¶9 At the outset, we reject Hansbrough’s contention that there must always be a not guilty verdict form for each guilty verdict form.
IAC Claim – Denial without Hearing
State v. Robert L. Brinson, 2010AP001819-CR, District 1, 5/10/11
court of appeals decision (3-judge, not recommended for publication); for Brinson: Paul Bugenhagen, Jr.; case activity
Cautionary instruction cured any potential prejudice from revelation of prior record.
¶16 We disagree. The trial court instructed the jury several times that it could not consider Brinson’s possible status as a probationer or parolee, or the fact that he spent time in jail,
Disorderly Conduct, § 947.01 – Sufficiency of Evidence; Resisting, § 946.41(1) – Jury Instructions
State v. Robert Lyle Lawver, Jr., 2010AP382-CR, District 4, 5/5/11
court of appeals decision (1-judge, not for publication); for Lawver: Cole Daniel Ruby; case activity
Conviction for disorderly conduct upheld on following facts:
¶9 The pertinent facts include the following. Lawver was walking at night down an unlit highway, traveling with traffic, so that he would not have been in a position to see motorists approaching from behind him.
Habeas – Death Penalty Phase Instructions
Bobby v. Harry Mitts, USSC No. 10-1000, 5/2/11 (per curiam)
The death penalty may not be imposed when the jury isn’t permitted to consider a verdict of guilt on a lesser included, non-capital offense supported by the evidence, Beck v. Alabama, 447 U.S. 625 (1980). As the Court now notes:
such a scheme intolerably enhances the irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.” Id.,
Reckless Homicide: “Substantial Factor” Causation, rel. to Life Support Termination
State v. Michael D. Below, 2011 WI App 64 (recommended for publication); for Below: Joseph L. Sommers; case activity
Below indisputably caused massive injuries that resulted in the victim’s death, albeit after medical staff terminated life support. His reckless acts were therefore a “substantial factor” in, hence caused, her death. He was not entitled to a theory of defense instruction authorizing the jury to acquit him on the basis that the termination of life support was an intervening cause of death.
Appellate Procedure: Waiver (Lesser Offense Instruction) – Binding Authority (Overruled Court of Appeals Decision); Counsel: Deficient Performance – Unsettled Law; Voluntary Statements; Adult Jurisdiction over Juvenile: Post-Trial Reverse Waiver Procedure Constitutional
State v. Darron D. Jackson, 2011 WI App 63 (recommended for publication); for Jackson: Rebecca Lawnicki; case activity
Waiver – Lesser Offense Instruction
The jury convicted Jackson of recklessly endangering safety while armed, which was submitted as a lesser offense of the charged offense, attempted first-degree intentional homicide. Although Jackson did object to the endangering instruction on the ground that it wasn’t supported by the facts,
3rd-Degree Sexual Assault – Consent Obtained “by Fraud”
State v. Kelly J. McCredie, 2010AP1179-CR, District 2, 3/2/11
court of appeals decision (not recommended for publication); for McCredie: William E. Schmaal, SPD, Madison Appellate; case activity
For purposes of 3rd-degree sexual assault, § 940.225(3), the actor cannot obtain consent by deceiving the victim as to his true identity. McCredie misled the victim into thinking he was his brother (she was sleeping in a dark room when he suddenly appeared;
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,
Curative Instruction; Theft by Fraud – Sufficiency of Proof
State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply
Curative Instruction
Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.
¶11 Not all errors warrant a mistrial,
Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense
State v. Morris L. Harris, 2009AP2833-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Lesser-Included Instruction – Battery
Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,