On Point blog, page 60 of 133
Judicial Estoppel – Generally
State v. Basil E. Ryan, Jr., 2012 WI 16, reversing 2011 WI App 21; case activity
¶32 We begin by addressing the circuit court’s application of the equitable doctrine of judicial estoppel. Judicial estoppel is intended “to protect against a litigant playing ‘fast and loose with the courts’ by asserting inconsistent positions” in different legal proceedings. State v. Petty,
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,