On Point blog, page 67 of 133
State v. Donovan M. Burris, 2009AP956-CR, Wis SCt rev granted 9/21/10
decision below: unpublished; prior On Point post; for Burris: Byron C. Lichstein
Issue (from Table of Pending Cases):
Was the trial court’s supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183,
State v. Olu A. Rhodes, 2009AP25, Wis SCt rev Granted 9/24/10
decision below: unpublished; prior On Point post; for Rhodes: John J. Grau
Issue (from Table of Pending Cases):
Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.
Homicide case, tried on State’s theory Rhodes had motive to kill victim for beating Rhodes’ sister; court of appeals reversed because trial judge cut off cross-examination that Rhodes did not react violently in response to prior harm inflicted by victim on sister.
State v. David D. Funk, 2008AP2765-CR, Wis SCt Rev Granted 9/24/10
decision below: unpublished summary disposition; for Funk: Michele Anne Tjader
Issue (from Table of Pending Cases):
Whether a juror was subjectively and/or objectively biased under the test set forth in State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999).
Briefs, appellate decision, petition for review: none is posted, so you can’t readily tell what the case is about. CCAP indicates that this is a sexual assault case and that the judge granted new trial because a juror failed to reveal on voir dire she’d been a sexual assault victim herself.
State v. Marvin L. Beauchamp, 09AP806, Wis SCT rev granted 9/13/10
decision below: 2010 WI App 42; for Beauchamp: Martin E. Kohler, Craig S. Powell
Issues (from Table of Pending Cases):
Does the confrontation clause bar admission of testimonial dying declarations against a defendant in light of Crawford v. Washington, 541 U.S. 36 and State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811?
Does a defendant’s right to due process of law restrict the substantive use of prior inconsistent statements?
Brown County Dept. of Human Services v. Brenda B., 2010AP321, Wis SCt rev granted 9/13/10
decision below: unpublished; for Brenda B.: Leonard D. Kachinsky; prior post, here.
Issue (from Table of Pending Cases):
Did the trial court correctly exercise its discretion in denying a parent’s motion to withdraw a no contest plea that grounds existed for termination of parental rights without an evidentiary hearing?
State v. Omer Ninham, 2008AP1139, Wis SCt rev granted 9/13/10
decision below: 2009 WI App 64; for Ninham: Frank M. Tuerkheimer; Bryan Stevenson; Rebecca Kiley
Issues (from Table of Pending Cases):
Whether Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 130 S.Ct. 2011 (2010) are applicable to revise the sentence of a defendant whose crime(s) were committed as a juvenile.
Whether the sentence constitutes cruel and unusual punishment under state and federal constitutions.
State v. David J. Balliette, 2009AP472, Wis SCT rev grant, 8/31/10
decision below: summary order (not posted); case information here; prior appeal: 2001AP2527-CR; for Balliette: Steven D. Grunder, SPD, Madison Appellate
Issue (from AG’s petition for review):
Is an evidentiary hearing into the effectiveness of post-conviction counsel required in every case where the § 974.06 motion merely makes the conclusory allegation that post-conviction counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct review?
Post-Appeal Interest-of-Justice Litigation
State v. Dimitri Henley, 2010 WI 97, on certification; prior history: unpublished decision; related: disqualification litigation; for Henley: Keith A. Findley, John A. Pray, Byron Lichstein; Amicus: SPD
“Wisconsin circuit courts do not have the inherent authority to order a new trial in the interest of justice when a case is not before the court under a proper procedural mechanism,”
Statute of Limitations – § 939.74(3) – Constitutionality; Pre-Charge Delay; Effective Assistance of Counsel – Investigation
Donald J. McGuire, 2010 WI 91, affirming unpublished decision; for McGuire: Robert R. Henak; BiC; Resp.; Reply
Statute of Limitations – § 939.74(3) – Constitutionality
Under § 939.74(3), the statute of limitations is tolled during “the time during which the actor was not publicly a resident within this state.” McGuire wasn’t a Wisconsin resident, but allegedly committed criminal acts in Wisconsin approximately 36 years before charges were issued.
Search Warrant – GPS Tracking Device
State v. Michael A. Sveum, 2010 WI 92, affirming 2009 WI App 81; for Sveum: Dean A. Strang, Marcus J. Berghahn; BiC; Resp.; Reply; Amicus (ACLU); Resp. to Amicus
A circuit court “order” authorizing law enforcement to place and monitor a GPS tracking device on Sveum’s vehicle satisfied 4th amendment Warrant Clause (all warrants must be validly issued) and Reasonableness Clause (warrants must be reasonably executed) requirements.