On Point blog, page 91 of 133
Common Law Defenses – Laches Bar
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remandingsummary order of court of appeals
For Coleman: Brian Kinstler
Issue/Holding:
¶28 Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice).
OWI, § 346.63(1)(am) – “Operating” – Merely Sitting in Parked Car, Engine Running, Not Enough
Village of Cross Plains v. Kristin J. Haanstad, 2006 WI 16, reversing unpublished decision
For Haanstad: John M. Gerlach
Issue: Whether sitting in the driver’s seat of a running, parked car is, without more, “operating” a motor vehicle within § 346.63.
Holding:
¶15 The term “operate” is defined in § 346.63(3)(b), which reads: “‘Operate’” means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.”¶16 The court of appeals’
Enhancer – Proof – CCAP Entries
State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue: Whether CCAP entries can satisfy the State’s burden of proving a repeater allegation.
Holding: Although the rules of evidence do not apply to proof of a repeater and a prior conviction need not be proved by certification,
(¶46) a CCAP report,
Enhancer – Pleading – Post-Plea Amendment
State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue: Whether post-plea amendment of the repeater allegation to change its basis prejudiced the defendant hence was improper.
Holding:
¶31 It is the State’s burden to prove that Bonds was not prejudiced and Wis. Stat. § 973.12(1) was satisfied through notice of sufficient allegations of the basis for charging habitual criminality.
Enhancer – Pleading – Generally
State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶30 When considered together, this precedent establishes the following principles:
(1) The purpose of the allegations of repeater status in a charging document is to provide the defendant with sufficient notice of the potential maximum penalty he faces in order that the defendant may make an informed plea.
Due Process – Identifcation Procedure – Show-up – “Accidental” Encounter
State v. Brian Hibl, 2006 WI 52, reversing 2005 WI App 228
For Hibl: Joel H. Rosenthal
Issue: Whether an identification resulting from an “accidental” encounter between witness and defendant in a courthouse hallway immediately before trial is suppressible, in the absence of any evidence that this incident involved a law enforcement procedure directed at obtaining an identification.
Holding:
¶31 For the reasons stated below,
Due Process – Right to Present Defense – Generally: Limited to Relevant Evidence
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶33 The Sixth Amendment and Due Process Clause right to present a defense requires that a defendant be allowed to introduce relevant evidence, subject to reasonable restrictions. …
¶34 The right to present a defense does not require that a defendant be allowed to present irrelevant evidence.
Separation of Powers – Prosecutorial Veto and § 973.195, TIS Sentence Adjustment
State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding: The prosecutorial veto written into the TIS sentence-adjustment provision, § 973.195, is unconstitutional:
¶83 … “[S]hall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under Wis.
Stop – Basis – Reasonable Suspicion, “Problem Area,” “Lingering” in Car
State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: The police had reasonable suspicion to stop Young because: he was in a parked car with Illinois plates, which had “lingered” for 5 or 10 minutes around midnight around the corner from a bar, in a “problem area”:
¶64 Although there are innocent explanations for why five people would be sitting in a car for five to 10 minutes,
Stop – Basis – Reasonable Suspicion, “Evasion and Flight”
State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Refusal to obey an officer’s command to halt reinforces extant reasonable suspicion to stop the individual:
¶73 Officer Alfredson testified that after he ordered Young to return to the car the first time, Young “turned and started walking away.”