On Point blog, page 102 of 133
Right to Counsel – Change of Counsel
State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168, 266 Wis. 2d 599, 669 N.W.2d 204
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John A. Pray, Frank Remington Center & WACDL
Issue/Holding:
¶66. The final issue we consider is whether the circuit court erred in failing to permit McDowell new counsel.
Counsel – Ineffective Assistance – Deficient Performance – Examination of Witness – Defendant’s Perjurious Testimony
State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168; habeas relief denied, McDowell v. Kingston, 497 F.3d 757 (7th Cir 2007)
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John A. Pray
Issue/Holding: (Given the significance of the holding, at-length quoting is required in regard to counsel’s performance obligations relative to a client whose testimony may be perjurious:)
¶2.
Reasonable Suspicion Issues – Frisk – Subjective Appreciation of Danger
State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision
For Kyles: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶22 … The State’s principal position is two-fold: First, the State argues that an officer’s “subjective fear of the suspect” being searched, as the state poses the issue, is not a prerequisite to a valid frisk. Second, the State argues that this court should bar any questioning of an officer about his or her “subjective fear of the suspect”
§ 940.225(2)(a), Second-Degree Sexual Assault – Sufficiency of Evidence – Timing of Force Element
State v. Obea S. Hayes, 2004 WI 80, affirming 2003 WI App 99, 264 Wis. 2d 377, 663 N.W.2d 351
For Hayes: Philip J. Brehm:
Issue/Holding:
¶64. We agree with the court of appeals that M.M.’s testimony did not follow a chronological order. A reasonable factfinder could, however, draw the inference that the defendant verbally threatened to have retaliatory sex with M.M.
Bail Jumping, § 946.49(1)(b) – Generally
State v. Daniel Wyatt Henning, 2004 WI 89
For Henning: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶39. In Wisconsin, bail jumping and the crime underlying a bail jumping charge are distinct and separate offenses for purposes of the Double Jeopardy Clause. State ex rel. Jacobus v. State, 208 Wis. 2d 39, 53, 559 N.W.2d 900 (1997) (citing State v.
Sexual Assault, § 948.02(2) — Defense of Deceitfully Misleading Defendant as to Minor’s Age
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether a minor sexual assault complainant’s intentional misrepresentation of his or her age supports an affirmative defense to § 948.02(2) sexual assault.
Holding:
¶19. The defendant acknowledges that Wis. Stat. §§ 948.02(2), 939.23, and 939.43(2) prohibit an actor from raising mistake about the age of the minor as a defense to the charge of sexual assault.
Guilty Pleas – Post-Sentencing Plea Withdrawal: Suppression of Material Exculpatory Impeachment Evidence – Statutory Basis
State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch
Issue/Holding:
¶34 We recognize that in the constitutional context, the Brady requirement of materiality is dependent upon whether the suppressed evidence undermines confidence in the outcome of the trial and that no trial took place here.
Hearsay – Against-Penal Interest Statement Exculpating Defendant, § 908.045(4)
State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals
For Guerard: Joseph L. Sommers
Issue/Holding:
¶23. The central issue in this case is the extent of corroboration required under Wis. Stat. § 908.045(4) for statements tending to expose the declarant to criminal liability and offered to exculpate the accused. We addressed this issue at length in Anderson,
Legislative Privilege, § 13.96 – “Confidential” Distinguished from “Privileged”
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,
Criminal Appeals, Duties of Counsel, Generally
State v. Iran D. Evans, 2004 WI 84, reversing unpublished decision of court of appeals
For Evans: Robert R. Henak
Issue/Holding:
¶30. During postconviction proceedings, a defendant must choose between being represented by the SPD, proceeding pro se, or securing private representation. State v. Redmond, 203 Wis. 2d 13, 19, 552 N.W.2d 115 (Ct. App. 1996). A defendant does not have the right to hybrid representation on appeal.