On Point: 30. Pretrial proceedings

court of appeals decision (3-judge, not recommended for publication); for Sterling: Dianne M. Erickson; BiC; Resp.; Reply

Charging Decision – Judicial Involvement
Increase in the charge, following trial judge’s veiled suggestion to the prosecutor that such an increase would be appropriate, wasn’t occasioned by judicial interference with prosecutorial discretion, ¶¶16-22.

Initially charged with first-degree reckless injury, Sterling was ultimately convicted on an amended charge of attempted first-degree intentional homicide.

decision below: 2009 WI App 143; for Conner: Steven J. House

Issues:

What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?

Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?

Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65, on reconsideration 2004 WI 149

Issue/Holding:

¶34. When we review a John Doe subpoena, a foundational issue may be constitutional in nature. For example, does the issuance of a subpoena in a John Doe proceeding, the sole purpose of such proceeding being to investigate alleged criminal activity, have the potential to affect Fourth Amendment rights?

State v. Juan M. Sandoval, 2009 WI App 61, PFR filed 5/6/09
For Sandoval: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: The State need not disclose bona fide rebuttal evidence, the test for which turns on whether the evidence “only became necessary at rebuttal” (as opposed to whether it would have been admissible or useful in the State’s case-in-chief), ¶¶30-34.

¶33   We are convinced that the State satisfied the law of Wisconsin in this case.

State ex rel. Individual v. Davis, 2005 WI 70, on certification

For Subpoenaed Individual: Stephen P. Hurley, Marcus J. Berghahn, Hal Harlowe

Issue/Holding:

¶15      A writ of prohibition is an extraordinary remedy that normally will not issue except in the absence of other adequate remedies. [6]As a remedy, writs of prohibition are often used in connection with John Doe proceedings.

Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65, reconsideration denied, 2004 WI 149

Issue/Holding:

¶11  Wahl contends that Wis. Stat. § 13.96, as it interacts with Wis. Stat. § 905.01, creates a statutory privilege that, while not expressly stated, is implicit in LTSB’s obligation to treat all information within its possession as confidential.  Therefore, as the legal custodian of the information stored by the LTSB,

State ex rel Unnamed Persons v. State, 2003 WI 30
For Unnamed Persons: Franklyn M. Gimbel, et al.
Issue/Holding:

¶48. On balance, we conclude that Wisconsin Constitution, Article VII, Section 5(3), read together with the language in Wis. Stat. § 808.03(2) and in Wis. Stat. § (Rule) 809.51(1) including “other person or body,” is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding.

State v. Frederick Robertson, 2003 WI App 84
For Robertson: Jefren Olsen, SPD, Madison Appellate

Issue/Holding: Where principal issue concerned the complainant’s credibility, indication first revealed after conviction that she had been treated for depression with psychotic features around the time of the incident required in camera inspection to determine whether her mental health records must be disclosed to the defense.

This case arrives at the unmapped intersection of postconviction discovery and privileged records.

State v. Johnny L. Green, 2002 WI 68, affirming unpublished court of appeals opinion
For Green: Nicolas G. Griswold

Issue/Holding: Viability of State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) upheld, against claim by state that it should be overturned. ¶22 n. 4. State v. Munoz, 200 Wis. 2d 391,

State v. Stanley A. Samuel, 2002 WI 34, reversing 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565

For Samuel: Robert A. Henak

Issue/Holding: Ҧ35. Under Velez, first the defendant must bring a motion to suppress, alleging facts sufficient to show that a statement was involuntary under Clappes and that the police misconduct at issue is egregious such that it produces statements that are unreliable as a matter of law.