On Point blog, page 75 of 133
Unfair Prejudice, § 904.03 – Jury Exposure to Proof of Element of Prior Conviction for “Violent Crime” on Stalking Trial
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate
Issue/Holding: On a trial for stalking, § 940.32, where one of the elements is prior conviction for “violent crime,” the defendant may blunt prejudicial impact of proof of the prior by stipulating to the existence of the conviction for a violent crime (thus precluding proof of its details);
Guilty Pleas – Procedure – Plea Questionnaire, Generally
State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:
¶32 The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea.
§ 904.04, Self-Defense – “McMorris” Acts of Prior Violence by Victim – Generally
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding:
¶21 It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.” State v. Wenger, 225 Wis.
Defense of Self, § 939.48(1) – Pretrial Disclosure by Defense of “McMorris” Acts of Prior Violence by Victim
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding: A trial court has inherent and statutory authority (§ 906.11) to order that a defendant provide a pretrial summary of the specific “McMorris” evidence (violent acts of the alleged victim the defendant knew about, as relevant to self-defense) he or she wants to introduce at trial:
¶26 Given the limited nature of the evidence covered in this order——that is,
Instructions — Omitted Element — “Fact-Law Distinction”
See summary of State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, here.
Omitted Issues – Stalking: Submission to Jury of Prior Conviction for “Violence” Despite Stipulation
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate
Issue/Holding: On a trial for stalking,
Closing Argument – Reference to Defendant’s Failure to Testify
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:
¶81 …
[F]or a prosecutor’s comment to constitute an improper reference to a defendant’s failure to testify,
Functional Equivalent of Custodial “Interrogation”
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate
Issue: Whether, following his in-custody invocation of right to counsel, Hambly’s subsequent statements that he didn’t know what was going on (eliciting the officer’s response that he’d sold cocaine to an informant) and wanted to talk to find out what his options were amounted to a initiation of contact authorizing interrogation within the Edwards rule.
Miranda Waiver – Voluntariness
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶93 The defendant summarizes his argument that he did not voluntarily, knowingly, and intelligently waive his right to counsel, stating that at the time of his arrest, he was hungry, alone in the back seat of a squad car,
Reinitiating Communication with Police, Following Assertion of Right to Counsel
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶77 Whether a suspect “initiates” communication or dialogue does not depend solely on the time elapsing between the invocation of the right to counsel and the suspect’s beginning an exchange with law enforcement, although the lapse of time is a factor to consider.…
¶82 … [T]he defendant’s statement here that he did not understand why he was under arrest was clearly seeking information and constituted an initiation of communication with Rindt in the most ordinary sense of the word.
Custodial Assertion of Rights – Assertion of Right to Counsel (Edwards Rule), made pre-Miranda warnings
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a suspect’s in-custody invocation of right to counsel before administration of Miranda warnings triggers the Edwards bar on interrogation absent the suspect’s reinitiating communication with the police.
Holding:
¶23 The State argues that in the present case when the defendant asked for an attorney he was not subject to custodial interrogation.