On Point: 2004-05 Term

State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding: Venue, § 971.19(1), requires trial in the county where the crime was committed; bindover proof of venue in a first-degree intentional homicide was sufficient (taking the inferences in favor of bindover) to show that defendant killed the victim in the county where the prosecution was lodged,

State v. Richard A. Moeck, 2005 WI 57, affirming 2004 WI App 47
For Moeck: David D. Cook

Issue/Holding1:

¶37 A mistrial is warranted if the mistrial is “manifestly necessary.” The State bears the burden to demonstrate that a “‘manifest necessity’ [exists] for any mistrial ordered over the objection of the defendant.” A “manifest necessity” warranting a mistrial is a high degree of necessity.

State v. Tyrone L. Dubose, 2005 WI 126
For Dubose: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether the test for admissibility of a pretrial showup should be changed. (“A ‘showup’ is an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes.” ¶1, n. 1, quoting State v. Wolverton, 193 Wis. 2d 234,

State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen

Issue1: Whether violation of the standards mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of counsel supports a collateral attack on a prior conviction.
Holding1:

¶25      … For there to be a valid collateral attack,

State v. Michael D. Sykes, 2005 WI 48, affirming unpublished decision of court of appeals
For Sykes: Jeffrey J. De La Rosa

Issue/Holding: Where the police had probable cause to arrest for criminal trespass, they did not have to subjectively intend to arrest the person for that offense in order to perform a search incident to arrest. And, though the search must be “contemporaneous” with the arrest (relatedly: probable cause must exist independent of the fruits of the search),

State v. James P., 2005 WI 80, affirming, 2004 WI App 124

Issue: Whether biological father’s parental rights could be terminated on the ground of “abandonment” where he was not adjudicated as father until after alleged periods of abandonment.

Holding:

¶15 We hold that an individual who is in fact the biological father of a nonmarital child satisfies the definition of “parent”

Sheboygan County DSS v. Rachel B., 2005 WI 84, reversing unpublished decision
IssueWhether competency challenge to a TPR proceeding is waived under § 48.422(2) if not first raised in circuit court.

Holding:

¶2        We conclude such a competency challenge based on the violation of the statutory time limitation of Wis. Stat. § 48.422(2) cannot be waived, even though it was not raised in the circuit court. 

State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶59 We agree with the State that while Krnak’s statement to Ellifson does not technically qualify as an excited utterance, or statement of recent perception due to timing problems, it does qualify under the residual hearsay exception because it contains several guarantees of trustworthiness similar to those found in statements admitted under the excited utterance exception….

State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding1 [general principles]:

¶29      … As this court summarized in Weed, for a statement to fit recent perception exception, it must pass the following three criteria:

(1) the statement was not made in response to the instigation of a person engaged in investigating,

State ex rel. Individual v. Davis, 2005 WI 70, on certification

For Subpoenaed Individual: Stephen P. Hurley, Marcus J. Berghahn, Hal Harlowe

Issue/Holding:

¶15      A writ of prohibition is an extraordinary remedy that normally will not issue except in the absence of other adequate remedies. [6]As a remedy, writs of prohibition are often used in connection with John Doe proceedings.