On Point blog, page 87 of 133
Particular Examples of Misconduct, § 904.04(2) – “Sullivan” Analysis & “Reverse” Misconduct
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen
Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and,
Privileges – Honesty Testing, § 905.065(1)): “Totally Discrete” Statement
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding1: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:
¶23 Under the totality of the circumstances, we conclude that Davis’s statement was not so closely associated with the voice stress analysis test so as to render it one event;
Guilty Pleas – Required Knowledge — Elements (Understanding Nature of Charge) – Party-to-a-Crime Liability
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The court must address the defendant personally and establish his or her understanding of the nature of the charge, and if ptac liability is alleged then that theory must be included in the plea colloquy, ¶¶36-37, citing State v. James E. Brown,
Guilty Pleas – Required Knowledge — Read-Ins: Defendant’s Understanding of
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: ¶28 n. 8:
We do not adopt the court of appeals’ determinations that read-in charges are merely “collateral consequences” of a plea, and that therefore information about read-ins “is not a prerequisite to entering a knowing and intelligent plea.” Lackershire, 288 Wis. 2d 609,
Guilty Pleas – Procedure – Factual Basis, Relation to Knowing and Intelligent Plea – Sufficiency of Plea Colloquy
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding1:
¶33 Wisconsin Stat. § 971.08(1)(b) provides that before a circuit court accepts a defendant’s guilty plea, it must “make such inquiry as satisfies it that the defendant in fact committed the crime charged.” This court has determined that establishing a sufficient factual basis requires a showing that “the conduct which the defendant admits constitutes the offense charged .
Bailiff as Potential Witness
State v. William Troy Ford, 2007 WI 138, affirming unpublished decisionFor Ford: Ralph J. Sczygelski
Issue/Holding Belated discovery of the bailiff’s involvement in the charged offense as a possible witness did not, under the circumstances, cause sufficient prejudice to require mistrial:
¶57 In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk,
Evidence – Sufficiency of Objection, Admissibility – Specificity of Ground Required
State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg
Issue: Whether a trial-level objection that a dismissed witness was unavailable for cross-examination on a prior statement was specific enough to preserve an appellate argument that the witness wasn’t given an opportunity to explain or deny the statement.
Holding:
¶31 The State argues that Nelis did not object at trial to the admission of the statements on the ground of Wis.
TPR – Right to Appearance by Counsel, Notwithstanding Parent’s Default in Failing to Personally Appear at Fact-Finding Phase
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order.” (¶2)
Holding:
¶41 We do not accept the State’s position for three reasons.
TPR – Right to Counsel, Waiver
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
¶57 The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be knowing and voluntary. As we determined in M.W.
TPR – Default as Sanction for Failure to Appear
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
Issue/Holding: ¶13 n. 3:
The circuit court did not order a default under Wis. Stat. § 806.02(5). Shirley E. had “appeared” at the hearing by her attorney. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis. 2d 1, 629 N.W.2d 768.The circuit court found Shirley E.