On Point blog, page 94 of 133
Statements – Suppression: Electronic Recording — Juveniles
State v. Jerrell C.J., 2005 WI 105, reversing 2004 WI App 9
For Terrell C.J.: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶58 … All custodial interrogation of juveniles in future cases shall be electronically recorded where feasible, and without exception when questioning occurs at a place of detention. Audiotaping is sufficient to satisfy our requirement; however, videotaping may provide an even more complete picture of what transpired during the interrogation.
Postconviction Motions — § 974.06, Supports Interest-of-Justice Review by Supreme Court
State v. Ralph D. Armstrong, 2005 WI 119, reversing unpublished decision
For Armstrong: Jerome Buting; Barry Scheck
Issue/Holding: Supreme court has both statutory and inherent authority to order new trial in the interest of justice, even on collateral review (as opposed to direct appeal), ¶¶119-24. (State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990) (court of appeals has no authority under § 752.35 to engage in no authority to undertake interest-of-justice review on collateral attack) severely questioned if not explicitly overruled.
Discovery – DNA Testing, at Defendant’s Own Expense, § 974.07(6)
State v. James M. Moran, 2005 WI 115, reversing unpublished decision
For Moran: Colleen D. Ball, State Bar Pro Bono Project
Issue/Holding:
¶3 We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material,
Waiver of Argument: Constitutionality of Statute – Facial Challenge
State v. Thomas H. Bush (III), 2005 WI 103, reversing in part and affirming on the merits, 2004 WI App 193
For Bush: Robert G. LeBell
Issue/Holding: Although an “as applied” challenge to a statute may be waived, a facial challenge, in contradistinction, is not waivable, ¶17:
¶18 This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void.
Standards of Review: Administrative Decision – Certiorari, de novo in part
State ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella
Issue/Holding:
¶13. Certiorari review for parole revocation is limited to four questions: “(1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.”
Appellate Procedure – Harmless Error – Test, Generally
State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73<
For Stuart: Christopher W. Rose
Issue/Holding:
¶40 The test for this harmless error was set forth by the Supreme Court in Chapman v. California, 386 U.S. 18 (1967), reh’g denied, 386 U.S.
Appellate Procedure – Harmless Error Test – Confrontation
State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73
For Stuart: Christopher W. Rose
Issue/Holding: Confrontation error deemed harmful, where the following evinced the tainted evidence’s impact: prosecutor’s litigation strategy, ¶51; jury’s reaction (which included repeated requests to have tainted testimony read back;
Appellate Procedure – Harmless Error Analysis – TPR – Exclusion of Expert Opinion Testimony
Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion
For Shannon R.: Brian C. Findley, SPD, Madison Appellate
Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.
Holding:
¶71 The State’s interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.’s constitutionally protected due process right to be heard in a meaningful manner.
Sentence Modification: New Factor — TIS-II, Reduced Penalty In Relation to TIS-I (Unclassified Felony) Sentence, Not New Factor
State v. James Hubert Tucker, Jr., 2005 WI 45, affirming summary order of court of appeals
For Tucker: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶2 We conclude, based on our holding in State v. Trujillo, 2005 WI 45, ___ Wis. 2d ___, ___ N.W.2d ___, that the reduced maximum confinement penalties under TIS-II do not constitute new factors when a defendant such as Tucker moves for the modification of sentences imposed under TIS-I.
Sentence Modification: New Factor, Generally
State v. Jose A. Trujillo, 2005 WI 45, affirming summary order of court of appeals
For Trujillo: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶13 We define a new factor as “an event or development which frustrates the purpose of the original sentence,” Champion, 258 Wis. 2d 781, ¶4, and recognize it to be more than a change in circumstances since the time of sentencing.