On Point blog, page 14 of 16
Sexual Assault; Charging Document; Excited Utterances; Newly Discovered Evidence
State v. Dion M. Echols, 2010AP2626-CR, District 1, 9/27/11
court of appeals decision (not recommended for publication); for Echols: Amelia L. Bizzaro; case activity
Evidence held sufficient to establish “great bodily harm” element of 1st-degree sexual assault, § 940.225(1)(a), where the harm was inflicted a short time after the assault.
¶23 In this case, the trial court properly determined that Echols’ shooting M.F. subsequent to the nonconsensual sexual contact constituted great bodily harm.
Discovery Violation – Harmless Error; Defendant’s Right not to Testify – Evidentiary Hearing
State v. Daniel E. Krueger, 2011AP571-CR, District 3, 8/2/11
court of appeals decision (1-judge, not for publication); for Krueger: Ana Lyn Babcock; case activity
Prosecutorial failure to disclose a police report containing his statements that “were incriminating and any reasonable prosecutor would have planned on using them at trial” violated Krueger’s right to discovery, ¶23, citing State v. DeLao, 2002 WI 49,
State v. Harry Thompson, 2009AP1505-CR, review granted 5/25/11
on petition for review of unpublished decision; for Thompson: J.P. La Chapelle; case activity
Issues (provided by court):
Whether the failure to inform Thompson of the applicable mandatory minimum sentence of 25 years of incarceration prior to trial violated Thompson’s constitutional due process rights.
Whether the complaint in this case was defective under Wis. Stat. § 970.02(1)(a) because it did not state the applicable mandatory minimum sentence,
Newly Discovered Evidence; In Camera Inspection, Psychological Treatment Records; Evidence – Restriction on Expert Testimony
State v. Crystal P. Keith, 2010AP1667-CR, District 1, 5/24/11
court of appeals decision (not recommended for publication); for Keith: John A. Pray; case activity
On Keith’s conviction for reckless homicide in beating death of foster son, statements of her biological daughter (such as, “Why does mama have to go to jail for what my daddy did”) didn’t satisfy the test for newly discovered evidence. Keith’s confession to the police “was so detailed”
Complaint – Sufficiency; Standard of Review – Transcripts not in Record
State v. Michael L. Gengler, 2010AP1999, District 2, 4/6/11
court of appeals (1-judge, not for publication); pro se; case activity
¶6 The trial court determined that the complaint and the amended complaint were proper, stating,
The complaint was duly sworn on oath. The complaint was signed and filed by an assistant district attorney as prescribed by WIS. STAT. § 968.02(1). The complaint alleges multiple violations of WIS.
Stalking, § 940.32: Notice of Charge, “Course of Conduct” / Elevation from Class I to H Felony Status
State v. Janet A. Conner, 2011 WI 8, affirming 2009 WI App 143; for Conner: Stephen E. Mays; case activity; Conner BiC; State Resp.; Reply
Stalking, § 940.32 – Notice of Charge, “Course of Conduct”
Stalking requires proof of, among other elements, a “course of conduct” which “means a series of 2 or more acts carried out over time,
Obstructing – Complaint, Probable Cause; Self-representation
State v. Richard A. Wusterbarth, 2010AP1306-CR, District 3, 2/1/11
court of appeals decision (1-judge, not for publication); for Wusterburth: Eileen A Hirsch, SPD, Madison Appellate; case activity; Wusterburth BiC; State Resp.; Reply
The complaint established probable cause for obstructing, § 946.41(1), by alleging that Wusterburth made a false report to the police that a neighbor was manufacturing drugs,
Notice of Mandatory Minimum
State v. Harry Thompson, 2009AP1505-CR, District 4, 11/24/10, reversed, 2012 WI 90
court of appeals decision (3-judge, not recommended for publication), reversed 2012 WI 90; for Thompson: J.P. La Chapelle; State BiC; Thompson Resp.; Reply; State Supp.; Thompson Supp.
Failure of the charging document to provide Thompson with notice that he faced a mandatory minimum confinement (25 years on each count) didn’t violate due process.
Interrogation – Ambiguous Request for Counsel; Joinder/Severance; Evidence – Autopsy Photos
State v. Adamm D.J. Linton, 2010 WI App 129; for Linton: Joseph E. Redding; BiC; Resp.; Reply
Interrogation – Ambiguous Request for Counsel
Initial custodial questioning terminated when Linton invoked his right to silence. During subsequent re-interrogation, Linton said, “when I asked for a lawyer earlier, why wasn’t he appointed to me?” The detective indicated that if Linton was asking for a lawyer then the police would “just stop talking to”
Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence
State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.
Evidence – Daubert – Bullet Traced to Particular Gun
The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:
¶22 Unlike in the federal system,