On Point blog, page 23 of 29
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,
Andre Brown v. Rednour, 7th Cir No. 10-1116, 3/25/11
Habeas Review – Inadmissible Evidence – Harmless Error
Error in jury exposure, during deliberations, to inadmissible police report deemed harmless where the report contained merely cumulative information, the trial court gave a curative instruction, and the evidence against Brown was overwhelming.
The standard on direct appeal for measuring reversible error is the familiar Chapman test, whether the error was harmless beyond a reasonable doubt.
Habeas Review, Batson Issue: Must Give Deference to State Court Determination
Felkner v. Steven Frank Jackson, USSC No. 10-797, 3/31/11
On habeas review under 28 U.S.C. § 2254, the court of appeals failed to give sufficient deference to the state court determination that the prosecutor had race-neutral reasons for striking 2 of 3 black prospective jurors.
The prosecutor struck one juror because she had an MSW, and the prosecutor didn’t like having social workers on the jury;
United States v. Styles Taylor, et al, 7th Cir No. 05-2007, 3/9/11
7th circuit court of appeals decision
Batson Challenge
Scope of the remand inquiry for the government to proffer nonracial justification for striking a minority juror is limited to the original reason offered during voir dire, new post hoc justifications being inadmissible. Miller-El v. Dretke, 545 U.S. 231 (2005), discussed and followed:
… Accordingly, Miller-El II instructs that when ruling on a Batson challenge,
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court of appeals decision (not recommended for publication); for McCredie: William E. Schmaal, SPD, Madison Appellate; case activity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;
State v. Sharon A. Sellhausen, 2010 WI App 175, review granted 2/8/11
court of appeals decision; for Sellhausen: Byron C. Lichstein; case activity
Issues (formulated by On Point):
Whether a trial judge has a sua sponte duty to strike a prosepctive juror who is an in-law of the judge.
Whether defense counsel’s use of a peremptory strike to remove the judge’s in-law renders harmless any error in the judge’s failure to remove that juror.
See prior post for further discussion.
Jury – Deliberations – Sequestration
State v. Bradley A. Brandsma, 2010AP1429-CR , District 4, 12/23/10
court of appeals decision (1-judge, not for publication); for Brandsma: Anthony J. Jurek; case activity; Brandsma BiC; State Resp.; Reply
Trial courts have “very broad discretion” under § 972.12 to allow a deliberating jury to separate overnight before returning to resume deliberations; court of appeals rejects argument under state and federal constitutions “a circuit court should presume that any separation of a jury renders that jury impartial in light of rapidly changing modes and content of publicly available information,”
Juror Disqualification – In-Law of Presiding Judge
State v. Sharon A. Sellhausen, 2010 WI App 175, reversed, 2012 WI 5; for Sellhausen: Byron C. Lichstein; case activity
¶1 Sharon Sellhausen appeals her jury conviction based on the presence of the presiding judge’s daughter-in-law on the panel of potential jurors. The daughter-in-law was not seated on the jury because Sellhausen’s trial counsel used a peremptory challenge to remove her.
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,