On Point: 45. WI Supreme Court

State v. Brad E. Forbush, 2011 WI 25, reversing 2010 WI App  11; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee; amicus: Colleen D. Ball, SPD, Milwaukee Appellate; case activity

Forbush’s 6th amendment right to counsel had already attached – because a criminal complaint had been filed – and he had retained counsel before officers began interrogating him on that charge in the absence of his attorney.

State v. Alan Keith Burns, 2011 WI 22, affirming unpublished decision; for Burns: David R. Karpe; case activity

The court rejects Burns’s claim for a new trial in the interest of justice premised on three grounds: 1. Burns was unable to cross-examine the complainant on her implication that he took her virginity; 2. evidence of prior sexual assaults of the complainant by his father,

on petition for review of summary order; for Goss: Daniel J. Chapman; case activity

Issue (formulated by On Point:

Whether probable cause of intoxication to administer a preliminary breath test under § 343.303 was shown by the smell of alcohol on the driver along with four prior OWI convictions.

The catch: with 4 priors, Goss’s legal blood alcohol content limit would have been .02. Given that greatly reduced threshold,

on petition for review of unpublished order; for State Public Defender: Joseph N. Ehmann; for amicus (WACDL): Robert R. Henak; for amicus (Appellate Section, State Bar): Anne B. Kearney; case activity

Issues (formulated by On Point):

Whether counsel is entitled to notice and opportunity to be heard before the court of appeals imposes a monetary or other penalty for an alleged violation of rules of appellate procedure.

Whether the court of appeals’

on bypass petition; for Nordberg: Donald T. Lang, SPD, Madison Appellate; case activity

Issue:

Whether someone under ch. 980 commitment as a sexually violent person bears the burden of proving by clear and convincing evidence the criteria for granting supervised release under § 980.08(4).

The court of appeals held, in State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443,

court of appeals decision; for Dowdy: Bryan J. Cahill; Amicus: Dustin Haskell (SPD), Robert Henak (WACDL); case activity

Issues (formulated by On Point):

Whether authority granted a circuit court by § 973.09(3)(a) to “extend probation for a stated period or modify the terms and conditions thereof,” includes the power to reduce the length of the term of probation.

Whether a circuit court has inherent authority to reduce the length of the term of probation.

State v. Miguel E. Marinez, Jr., 2011 WI 12, reversing unpublished decision; case activity; prior post; for Marinez: Ralph J. Sczygelski

Evidence – Other-Acts, § 904.04(2) – “Sullivan” Analysis

¶19  To guide courts in determining whether other-acts evidence is admissible for a proper purpose under Wis. Stat. § 904.04(2)(a), we developed a three-prong test.  Sullivan,

Evelyn Werner v. Kenneth Hendree, 2011 WI 10, reversing 2009 WI App 103; case activity

Appellate Procedure – Finality and Appealability

A circuit court order rejecting state indemnification of an employee being sued was non-final and thus absorbed in the final judgment later entered as to liability and damages.

¶62  An appeal may be taken as a matter of right only from a final judgment or a final order. 

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,

court of appeals decision; for Sellhausen: Byron C. Lichstein; case activity

Issues (formulated by On Point):

Whether a trial judge has a sua sponte duty to strike a prosepctive juror who is an in-law of the judge.

Whether defense counsel’s use of a peremptory strike to remove the judge’s in-law renders harmless any error in the judge’s failure to remove that juror.

See prior post for further discussion.