On Point blog, page 1 of 6
Jury – Selection – Bias / Disqualification – Employment by DA’s Office
State v. Dale L. Smith, 2006 WI 74, affirming unpublished decision
For Smith: Allison Ritter
Issue/Holding:
¶16 The sole question we must address on appeal is whether Smith was denied the right to an impartial jury by the circuit court’s refusal to strikeCharlotte for cause. Smith argues that Charlotte should have been disqualified as objectively biased because she was employed by the prosecuting attorney.
SVP – Trial: Evidence — Disposition Alternatives – Criminal Justice System Supervision Irrelevant
State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62, 2005 WI App 62
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether evidence of probation supervision was relevant to future dangerousness, and therefore should have been admitted into evidence.
Issue:
¶41 … (T)he plain language of Wis. Stat. § 980.01(7) makes the existence of a mental disorder—not any extrinsic factors—the first step in determining dangerousness and the substantial probability of the person engaging in future acts of sexual violence.
Sentence Modification – Necessity of Postconviction Motion, Even Following Resentencing
State v. Roger S. Walker, 2006 WI 82, affirming as modified summary order
For Walker: James Rebholz
Issue/Holding: In order to obtain review, a defendant must file a postconviction motion to modify sentence, even if the event was a re-sentencing which came to the same result as originally imposed.
¶37 In the hope of clarifying appellate procedure, we conclude that when a defendant seeks modification of the sentence imposed at resentencing,
Waiver of Issue: Judicial Communications with Jury during deliberations – Defendant’s Right to Presence
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
Issue/Holding:
¶36 The parties agree with the court of appeals that the circuit court’s communications with the jury outside the presence of the defendant is error, violating the defendant’s constitutional and statutory right to be present. We agree with the parties.…
¶63 (W)hatever the requirement for an accused’s waiver of the right to be present when a circuit court communicates with the jury,
Standards of 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.
SVP – Post-Disposition — Failure to Obtain Residential Placement on Court Order for Supervised Release
State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding1: Failure to place Schulpius on court-ordered supervised release did not “shock the conscience,” hence did not violate substantive due process, where the failure occurred despite good-faith, substantial efforts to comply with the order, ¶31.
Issue/Holding2: Failure to place Schulpius on court-ordered supervised release violated procedural due process.
Sentencing – Review — Inaccurate Information — Test
State v. Larry A. Tiepelman, 2006 WI 66, reversing 2005 WI App 179
For Tiepelman: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether, on a claim that the sentence violated due process because based on inaccurate information, the defendant must show not only sentencing court reliance on the inaccurate information, but also prejudicial reliance.
Holding:
¶2 We hold that in a motion for resentencing based on a circuit court’s alleged reliance on inaccurate information,
Common Law Defenses – Collateral Attack on Order as Element of Pending Offense, Generally
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶42 Where a valid order or judgment is a necessary condition for one of the elements of a crime, a collateral attack upon the order or judgment can negate an element of the crime if the order or judgment is void. See State v.
Enhancer – Waiver of Objection to Sufficiency of Repeater Proof
State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding: Failure to object to the manner of proving a repeater allegation (via CCAP) did not constitute waiver of an objection that the proof was insufficient:
¶51 The State contends that we concluded in Saunders that an objection to the sufficiency of the evidence of habitual criminality must be made in the circuit court or it is waived.
Due Process – Right to Present Defense – Expert Testimony, Identification Procedure
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding:
¶27 In St. George, this court held that the circuit court’s exclusion of testimony of a defense expert about the victim’s recantation, and about interview techniques particular to child sexual assault cases, unconstitutionally deprived the defendant of his right to present a defense.