On Point blog, page 3 of 7
Procedure – Read-In — Defendant’s Awareness of Implications re: Admission
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue: Whether, for a guilty plea to be “knowing and intelligent,” the defendant must be aware that a read-in is deemed an admission for sentencing purposes.
Holding:
¶3 We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose.
Guilty Plea – Procedure – Read-In — Admission Unnecessary
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue: Whether a guilty plea colloquy must include an explicit warning that the defendant’s agreement to read in a dismissed charge will be deemed an admission of that charge for sentencing purposes.
Holding:
¶5 Although the case law on read-in charges is neither consistent nor clear,
Newly Discovered Evidence – Reasonable Probability of Different Result: Expert Lied About Credentials
State v. Douglas J. Plude, 2008 WI 58 reversing unpublished decision
For Plude: Stephen D. Willett
Issue/Holding:
¶36 We conclude that in a trial rife with conflicting and inconclusive medical expert testimony about a case the circuit court observed was based on “circumstantial evidence,” there exists a reasonable probability that, had the jury discovered that Shaibani lied about his credentials, it would have had a reasonable doubt as to Plude’s guilt.
Confrontation – Generally: Statements Made by Prosecutor and Judge in Transcript Read to Jury
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation,
Confrontation – Prosecutor’s Closing Argument
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶39 Jorgensen’s right to confrontation was also violated during the prosecutor’s closing argument. The prosecutor took what the jury had improperly heard during the trial a step further. She “testified” that Jorgensen was a “chronic alcoholic” who did not acknowledge his problem,
Sentencing Review – Factors – Proof of (Other Offenses)
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue/Holding: The sentencing court may consider uncharged and unproven offenses, ¶36; id n. 20:
State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341. See also State v. McQuay , 154 Wis. 2d 116,
TPR – Elements, Continuing Need of Protection and Services; Stipulation to Element; Withdrawal of Jury Demand
Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification
TPR – Elements, Ground of Continuing Need of Protection and Services, Generally
Issue/Holding:
¶6 There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice.
Statements – Voluntariness – Post-Stress Test (“Honesty Testing”) Statement
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding:
¶38 In the case at hand, we conclude, as did the circuit court, that the defendant’s statement was voluntary. The record contains no evidence that would give rise to any concerns regarding his personal characteristics. Davis, at the time this occurred, was 43 years old. While the defendant’s brief indicates that Davis only possesses a middle school level education,
Confessions – Post-Voice Stress Analysis – “Honesty Testing” Admissibility: Same Test as Polygraphs
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding:
¶20 Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka, Wisconsin Evidence§ 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently,
Confessions – Post-Voice Stress Analysis – Admissibility: “Totally Discrete” Statement
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding1: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:
¶23 Under the totality of the circumstances, we conclude that Davis’s statement was not so closely associated with the voice stress analysis test so as to render it one event;