On Point: 25. Jury

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court of appeals decision (1-judge, not for publication; for Jones: Brian P. Dimmer; case activity)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.

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.  

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court of appeals decision (1-judge, not for publication); for Berend: Walter Arthur Piel, Jr.; case activity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.

State v. Paschall Lee Sanders, 2011 WI App 125 (recommended for publication); for Sanders: Ellen Henak, SPD, Milwaukee Appellate; case activity

The definitions of “mental disorder” in since-amended pattern instruction Wis JI—Criminal 2502 (2009), though concededly contradictory, didn’t prevent from being tried the issue of whether Sanders qualified for commitment as a sexually violent person:

¶14      As we have seen, two sentences in what the circuit court told the jury are contradictory:

(1)   “Mental disorder means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence and causes serious difficulty in controlling behavior.”  (Emphasis added.)

(2)   “Not all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior.”

As noted earlier,

MC Winston v. Boatwright, 7th Cir No. 10-1156, 8/19/11

seventh circuit court of appeals decision, denying habeas relief on review of unpublished decision in 2003AP3412 and 2005AP1255

Habeas – Jury Selection – Ineffective Assistance – Defense Counsel’s Discriminatory Use of Peremptories

In a nutshell, this case presents the question whether the constitutional rights of the petitioner, MC Winston,

On Point is very pleased to present this Guest Post discussion of State v. Funk and State v. Denson, by the Honorable Richard J. Sankovitz, Milwaukee County Circuit Court. Feel free to submit comments in the box at the end of the Post.

Trial judges monitor the flurry of end-of-term Wisconsin Supreme Court decisions for new rules of decision and new procedures to be followed in our courts. 

State v. Esteban M. Gonzalez, 2011 WI 63, reversing, 2010 WI App 104; for Gonzalez: Frank J. Schiro, Kristin Anne Hodorowski; case activity

Gonzalez has shown a reasonable likelihood that the jury instructions relived the State of its burden to prove the element that he knowingly exhibited harmful material to a child.

The facts are essentially undisputed: Gonzalez watched pornography while care-taking his 3-year-old daughter,

State v. David D. Funk, 2011 WI 62, reversing unpublished summary disposition; for Funk: Michele Anne Tjader; case activity

Juror Bias – Assessment, Generally

A claim of juror bias relies requires proof of the two-step test articulated by State v. Wyss, 124 Wis. 2d 681, 726, 370 N.W.2d 745 (1985): “(1) that the juror incorrectly or incompletely responded to a material question on voir dire;

State v. Roshawn Smith, 2010AP1192-CR, District 3, 5/26/11, aff’d and rev’d, 2012 WI 91

court of appeals decision (not recommended for publication), aff’d in part, rev’d in part, 2012 WI 91; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity

Evidence held sufficient to support guilty verdict, § 961.41(1m)(h)5., ptac: after agreeing to accept packages (which turned out to contained marijuana),

State v. Jenny L. Nowak, 2010AP1499-CR, District 3, 5/17/11

court of appeals decision (1-judge, not for publication); for Nowak: Keith F. Ellison; case activity

Warrantless entry into Nowak’s garage was justified under hot pursuit doctrine, given “probable cause to believe Nowak committed a jailable offense—specifically, resisting by failure to stop,” § 346.17(2t) (punishable by 9 months imprisonment), ¶15. (Citing, State v. Richter,