On Point blog, page 21 of 29
Postconviction Proceedings – Expiration of Deadline for Ruling; Ineffective Assistance of Counsel – Voir Dire – Juror Bias
State v. Edward Beck, 2010AP872-CR, District 4, 10/20/11
court of appeals decision (1-judge, not for publication); pro se; case activity
Circuit court is under no obligation to seek extension of the § 809.30(2) limitation period for its ruling on a postconviction motion.
¶6 Beck reads too much into the 2001 amendment to Wis. Stat. § 809.30(2)(i). The amendment simply added language to § 809.30(2)(i) specifying the entities that may request an extension,
Repeated Sexual Assault of Same Child, § 948.025(1)(a) – Mandatory Minimum Sentence – Jury Instructions
State v. Carlos G. Comas, 2010AP2687-CR, District 4, 9/29/11
court of appeals decision (not recommended for publication); for Comas: Steven D. Grunder, SPD, Madison Appellate; case activity
Although Comas was charged with § 948.025(1)(a), repeated sexual assault of the same child by acts of sexual intercourse, the case was in effect tried under § 948.025(1)(ar) ,which requires acts of sexual intercourse or contact. Comas received a confinement term of 25 years,
Ineffective Assistance of Counsel – Lesser Offense; Sentencing – Exercise of Discretion
State v. Aaron Deal, 2010AP1804-CR, District 1, 9/20/11
court of appeals decision (not recommended for publication); for Deal: James A. Rebholz; case activity
Counsel’s refusal to argue to the jury that it should return a guilty verdict on felony murder, submitted as a lesser offense option of first-degree intentional homicide, wasn’t deficient in light of the defendant’s insistence on an all-or-nothing strategy.
¶8 At the Machner hearing,
Hearing-Impaired Juror: Inability to Hear Certain Testimony; Evidence: Haseltine “Vouching” Testimony – Harmless Error
State v. James T. Kettner, 2011 WI App 142 (recommended for publication); for Kettner: Andrew R. Hinkel, Jefren E. Olsen, SPD, Madison Appellate; case activity
Hearing-Impaired Juror – Inability to Hear Certain Testimony
A juror’s inability to hear most of alleged victim S.K.’s answers in a videotaped interview didn’t violate Kettner’s rights to impartial jury or due process, given that S.K. also testified in person consistent with her videotaped answers.
IAC – Jury Unanimity (Multiple Counts, Sexual Assault)
State v. Carl Mills, 2010AP1746-CR, District 1, 9/7/11
court of appeals decision (not recommended for publication); for Mills: Randall E. Paulson, SPD, Milwaukee Appellate; case activity
Trail counsel was not ineffective for failing to object to jury instructions and verdict forms with respect to unanimity on multiple counts of sexual assault of a single victim, even though the verdict forms did not specify the types of sexual intercourse involved;
Fleeing, § 346.04(3): Elements; Instructions, “Law of the Case”: As Measure of State’s Proof – Harmless Error
State v. Courtney C. Beamon, 2011 WI App 131 (recommended for publication); for Beamon: Donna L. Hintze, SPD, Madison Appellate; case activity; petition for review granted, 4/25/12
Fleeing, § 346.04(3) – Elements
¶4 …. In State v. Sterzinger, 2002 WI App 171, ¶9, 256 Wis. 2d 925, 649 N.W.2d 677, this court separated the language of § 346.04(3) into segments: (1) No operator of a vehicle,
Instructions – Self-Defense – Deadly Force, JI-805; Restitution
State v. Joseph Gayden, 2010AP2360-CR,District 1, 8/30/11
court of appeals decision (not recommended for publication); for Gayden: Matthew S. Pinix; case activity
The difference between Wis JI-Criminal 800 and 805 is that the latter limits the defendant’s intentional use of force intended or likely to cause death or great bodily harm to reasonable belief that the force is necessary to prevent imminent death or great bodily harm.
Effective Assistance – Jury Selection – Objective Bias; Failure to Object to State’s Voir Dire
State v. Stephen R. Jones, 2011AP864-CR, District 3, 8/30/11
court of appeals decision (1-judge, not for publication; for Jones: Brian P. Dimmer; case activity)
Failure to move to strike juror wasn’t deficient performance. Juror’s public support of election of the presiding judge and the district attorney (who was not herself prosecuting this case) didn’t establish a significant relationship with either individual to establish “objective bias.” State v.
Search Warrant: Execution Reasonableness – Inevitable Discovery; Evidence: Denny (Third-Party Liability); Juror: Removal, During Deliberations – Substitution of Alternate, After Deliberations Commence
State v. Steven A. Avery, 2011 WI App 124 (recommended for publication); for Avery: Martha K. Askins, Suzanne L. Hagopian, SPD, Madison Appellate; case activity
Search Warrant – Execution – Reasonableness
Warrant-based search of Avery’s property was a reasonable continuation of the original search 3 days earlier.
General statement:
¶18 Generally, searches are subject to the “one warrant, one search” rule.
OWI – Breathalyzer Results, Jury Instructions
County of Ozaukee v. David W. Berend, 2011AP291, District 2, 8/24/11
court of appeals decision (1-judge, not for publication); for Berend: Walter Arthur Piel, Jr.; case activity
Breathalyzer test results are admissible (and presumptively accurate) in OWI and PAC proceedings if “the sample was taken within 3 hours after the event to be proved,” § 885.235(1g). Berend’s test was administered at 11:07, and he said he’d stopped drinking at 8:00.