On Point blog, page 60 of 133
State v. Brian K. Avery, 2011 WI App 148, rev. granted 2/23/12
on review of published opinion; for Avery: Keith A. Findley, Tricia J. Bushnell; case activity; prior post
Newly Discovered Evidence / Interest of Justice – New Forensic Method
Issues (composed by On Point):
1. Whether new scientific photogrammetric analyses by expert witnesses, indicating that the suspect in video surveillance was shorter than Avery, entitles him to a new trial on the ground of newly discovered evidence.
Probation – Length of Term, Authority to Reduce
State v. Carl L. Dowdy, 2012 WI 12, affirming 2010 WI App 58; for Dowdy: Bryan J. Cahill; Amicus: Dustin Haskell (SPD), Robert Henak (WACDL); case activity
¶4 We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation. Rather, the plain language of § 973.09(3)(a) grants a circuit court authority only to “extend probation for a stated period”
Juror Bias / Disqualification – Waiver of Issue: Use of Peremptory to Remove Juror
State v. Sharon A. Sellhausen, 2012 WI 5, reversing 2010 WI App 175; for Sellhausen: Byron C. Lichstein; case activity
The trial judge’s daughter-in-law was part of the jury pool; Sellhausen didn’t seek her removal for cause, but used a peremptory to strike her, which rendered harmless any possible error in the trial judge sua sponte failing to remove the juror for cause.
Fleeing, Elements: “Willful or Wanton Disregard”; Evidence – Character Trait of “Victim,” § 904.04(1)(b)
State v. Daniel H. Hanson, 2012 WI 4, affirming 2010 WI App 146; for Hanson: Robert R. Henak, Chad Lanning; case activity
Fleeing, § 346.04(3) – Elements: “Willful or Wanton Disregard”
Fleeing does not require “an evil or malicious state of mind” when disregarding an officer’s signal:
¶22 In Wis. Stat. § 346.04(3), “willful” modifies “disregard.” In that context,
State v. Dimitrius Anagnos, 2011 WI App 118, rev. granted 1/25/12
on review of published opinion; for Anagnos: Barry S. Cohen; case activity; prior post
Traffic Stop – Reasonable Suspicion – OWI Refusal Hearing Challenge to Arrest
Issues (composed by On Point):
1. Whether the officer could lawfully stop Anagnos’ vehicle for failing to use a turn signal where neither traffic nor pedestrians were present, § 346.34(1)(b).
2. Whether the officer had reasonable suspicion to stop Anagnos’
State v. Dennis D. Lemoine, 2010AP2597-CR, rev. granted 1/25/12
on review of unpublished opinion; for Lemoine: Donna L. Hintze, Katie R. York, SPD, Madison Appellate; case activity
Involuntary Statement – Coercion
Issue (composed by On Point):
Whether Lemoine’s in-custody statement was involuntary given the following police tactics:
- promising that in exchange for the “true story” he would not go to jail that night;
- telling him that he would not be able to contact an attorney while at the jail;
Probable Cause – PBT
State v. Jason E. Goss, 2011 WI 104, affirming court of appeals summary order; for Goss: Daniel J. Chapman; case activity
¶2 We are asked to determine whether the officer’s request for the PBT breath sample was made in violation of Wis. Stat. § 343.303, which states that an officer “may request” a PBT breath sample “[i]f a law enforcement officer has probable cause to believe that the person is violating or has violated s.
State v. Joseph C. Miller, 2010AP557-CR, rev. granted 12/13/11
on review of summary opinion; for Miller: Martha K. Askins, SPD, Madison Appellate; case activity
Terry Stop – Reasonable Suspicion
Issue (composed by On Point):
Whether information obtained from a jail inmate and other, anonymous sources established reasonable suspicion for a Terry stop.
Neither the court of appeals summary order nor Miller’s petition for review is available on-line. The briefs filed in the court of appeals indicate that Miller’s car was stopped after the police received information that he was transporting drugs.
State v. Michael L. Frey, 2010AP2801-CR, rev. granted 12/14/11
on review of unpublished decision; for Frey: Devon M. Lee, SPD, Madison Appellate; case activity
Sentencing Discretion – Reliance on Dismissed Charge
Issue (composed by On Point):
Whether sentencing discretion was erroneously exercised by undue reliance on, including unfounded inferences drawn from, a charge dismissed “outright.”
Frey was charged with sexually assaulting two girls. Both testified at the preliminary hearing. Frey ended up pleading no contest to assaulting one,
State v. Scott E. Ziegler, 2010AP2514-CR, rev. granted 12/14/11
on certification by-pass of court of appeals; for Ziegler: Christopher William Rose; case activity; prior post
Interfering with Custody, § 948.31(2)
Issue (from Certification):
In State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332, we analyzed Wis. Stat. § 948.31(2), which deals with criminal charges for interference with custody of children. There,