On Point blog, page 94 of 133
Plea-Withdrawal, Post-sentence — Procedure: Prima Facie Showing, Relative to Knowledge of Charge – Illiterate Defendant, Perfunctory Colloquy
State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: The defendant demonstrated a prima facie showing that his guilty plea was inadequate, where he was illiterate (such that a plea questionnaire wasn’t even prepared) and the trial court’s colloquy was superficial, ¶¶53-58.
The facts are sufficiently extreme that recurrence is highly unlikely and they therefore won’t be detailed in this summary;
§ 902.01(2), Judicial Notice – Local Police P & P Manual
State v. Vanessa Brockdorf, 2006 WI 76, affirming unpublished decision
For Brockdorf: Martin E. Kohler, Brian Kinstler
Issue/Holding: ¶39 n. 6:
After oral argument and pursuant to an order dated October 14, 2005, the parties submitted to the court the relevant provisions of the MPD Policies and Procedures Manual. Pursuant to Wis. Stat. § 902.01, in our discretion,
Opinion & Expert Testimony – Eyewitness Identification – Sequential vs. Simultaneous Lineup
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding: Trial court’s refusal to admit expert testimony on factors influencing witness’s ability to identify a stranger during a lineup procedure, in particular the distorting effect of a simultaneous as opposed to sequential procedure, was not an erroneous exercise of discretion:
¶15 In 2002,
§ 904.01, Relevance – Consciousness of Innocence – Offer to Take Polygraph
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding:
¶39 Finally, we determine that the circuit court did not erroneously exercise its discretion in refusing to admit testimony regarding Shomberg’s offer to take a polygraph examination. … However, such an offer is only “relevant to the state of mind of a person making the offer as ‘long as the person making the offer believes that the test or analysis is possible,
Double Jeopardy – Multiplicity – Particular Crimes – Reckless Injury – Same Victim, Multiple Blows
State v. Rachel W. Kelty, 2006 WI 101, reversing unpublished decision
For Kelty: Michael J. Fairchild
Issue/Holding: The defendant’s striking the victim “twice with two separate objects, each time committing herself to strike the baby, each blow separate, distinct, not identical in fact,” supports two separate charges of first-degree reckless injury, § 940.23(1)(a), ¶¶49-50.
Common Law defenses – Collateral Attack on Element of Custody Order, § 948.31, as Procured by Fraud
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.
Holding:
¶56 There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.¶57 One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.
Review: Administrative Body – Construction of Constitutional Provision
Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals, 2006 WI 86
Issue/Holding:
¶14 By granting deference to agency interpretations, the court has not abdicated, and should not abdicate, its authority and responsibility to interpret statutes and decide questions of law. Some cases, however, mistakenly fail to state, before launching into a discussion of the levels of deference, that the interpretation and application of a statute is a question of law to be determined by a court.
Competency of Court and Time Limit, § 48.422(2) — Continuance Beyond Time Limit for Fact-Finding Hearing – Factors
State v. Robert K., 2005 WI 152, affirming unpublished opinion
Issue: Whether a TPR court lost competency to proceed because the fact-finding hearing was held more than 45 days after the contested plea hearing, the time limit set by § 48.422(2).
Holding: A continuance of the fact-finding hearing beyond the 45-day limit may properly be granted under § 48.315(2), as to which good cause was established on this record,
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.