On Point blog, page 24 of 29
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court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply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,
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court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply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,
State v. Donovan M. Burris, 2009AP956-CR, Wis SCt rev granted 9/21/10
decision below: unpublished; prior On Point post; for Burris: Byron C. Lichstein
Issue (from Table of Pending Cases):
Was the trial court’s supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183,
State v. David D. Funk, 2008AP2765-CR, Wis SCt Rev Granted 9/24/10
decision below: unpublished summary disposition; for Funk: Michele Anne Tjader
Issue (from Table of Pending Cases):
Whether a juror was subjectively and/or objectively biased under the test set forth in State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999).
Briefs, appellate decision, petition for review: none is posted, so you can’t readily tell what the case is about. CCAP indicates that this is a sexual assault case and that the judge granted new trial because a juror failed to reveal on voir dire she’d been a sexual assault victim herself.
Hearing-Impaired Juror; Record Reconstruction
State v. Precious M. Ward, 2009AP2085-CR, District 1, 10/5/10
court of appeals decision (3-judge, not recommended for publication); for Ward: Lew A. Wasserman; BiC; Resp.; Reply
Hearing-Impaired Juror
Juror who was hearing impaired, but not completely so; who could lip read; and for whom the trial judge took precautions to make sure he could hear everything, was qualified to sit.
Obstructing – Unanimity – Course of Conduct; Obstructing – Sufficiency of Proof
State v. Jennette L. Ellifritz, 2010AP713-CR, District 2, 9/1/10
court of appeals decision (1-judge, not for publication); for Ellifritz: Gary Grass; BiC; Resp.; Reply
Obstructing – Unanimity – Course of Conduct
Because Ellifritz’s actions occurred during a single course of action, over a short (40-second) period of time, instructional failure to require agreement as to which separate act constituted obstructing didn’t violate her right to unanimous verdict;
Evidence / IAC: Comment on Refusal to Provide DNA; Instruction: Recording Policy Interrogation; Impeachment: Prior Convictions
State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply
Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance
Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel,
Venue: Instruction, Proof; Obstructing: Proof; Instruction: Recently Stolen Property
State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
Venue – Instruction
¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v.