On Point blog, page 77 of 133
Arrest, Search Incident to – Timing
State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding:
¶33 We note at the outset that Officer Hahn testified he did not place Pickering under arrest until after he had performed searches of the eyeglass case and Denk’s clothing. This fact does not alter our analysis. In State v.
Arrest — Search Incident to Arrest — “Protective Sweep” Doctrine: Search of Canister
State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶35 Accepting for the moment the State’s position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant’s bedroom who would pose a danger to the officers and that a protective search of the bedroom was therefore justified,
Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right, Generally: Suppression Need not Be Expressly Provided
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue/Holding:
¶62 …[E]vidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the suppression or exclusion of the evidence.
Plain Error, § 901.03(4) – Confrontation-Based Errors: Statements by Prosecutor and Judge in Transcript Read to Jury
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation,
Plea Bargains – Validity: Illusory Plea Agreement – Applicability to Dismissed Charge
State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: Where a charge dismissed by the plea bargain arguably lacks factual basis, but the defendant receives the full benefit of the plea agreement as to the counts of conviction, an argument in favor of plea-withdrawal on the basis of an “illusory” plea bargain isn’t supported:
¶69 Denk contends that § 961.573(3) does not criminalize possession of paraphernalia related to personal use.
Privileges – Honesty Testing, § 905.065(1): Voice Stress Analysis Admissibility
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding:
¶20 Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka,Wisconsin Evidence § 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently,
Procedure – Read-In — Defendant’s Awareness of Implications re: Admission
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue: Whether, for a guilty plea to be “knowing and intelligent,” the defendant must be aware that a read-in is deemed an admission for sentencing purposes.
Holding:
¶3 We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose.
Guilty Plea – Procedure – Read-In — Admission Unnecessary
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue: Whether a guilty plea colloquy must include an explicit warning that the defendant’s agreement to read in a dismissed charge will be deemed an admission of that charge for sentencing purposes.
Holding:
¶5 Although the case law on read-in charges is neither consistent nor clear,
Newly Discovered Evidence – Reasonable Probability of Different Result: Expert Lied About Credentials
State v. Douglas J. Plude, 2008 WI 58 reversing unpublished decision
For Plude: Stephen D. Willett
Issue/Holding:
¶36 We conclude that in a trial rife with conflicting and inconclusive medical expert testimony about a case the circuit court observed was based on “circumstantial evidence,” there exists a reasonable probability that, had the jury discovered that Shaibani lied about his credentials, it would have had a reasonable doubt as to Plude’s guilt.
Confrontation – Generally: Statements Made by Prosecutor and Judge in Transcript Read to Jury
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation,