On Point blog, page 4 of 7
Appellate Procedure – Harmless Error: General Test
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis
Issue/Holding: Various discovery and evidentiary violations amounted to harmless error, whether taken singly (¶¶41-59, ¶87-90) or cumulatively (¶¶109-113).Harmless error discussions are largely fact-specific, and this case is no exception. But it is noteworthy for its recognition that the “court has formulated the test for harmless or prejudicial error in a variety of way,” ¶42.
Defenses – Statute of Limitations, § 939.74 – Tolling: Procedure for Determining
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak
Issue/Holding:
¶50 Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez,
Warrants – Scope – Business Records
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue: Whether execution of a search warrant for business records exceeded the warrant’s scope in that the warrant: authorized only the search for and seizure of records that related to a specific business with specifically named clients; and also authorized only a search of that business’s office space and not the defendant’s personal office within that space.
Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) – Construction, Generally – Relevance of Federal Decisions
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding:
¶15 Extrinsic sources include legislative history. Id. The drafting records of the Electronic Surveillance Control Law state that the law “represents Wisconsin implementation of the electronic surveillance portion of [Title III],” the Omnibus Crime Control and Safe Streets Act of 1968.
Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — No Reasonable Expectation of Privacy by School Bus Driver in Statements Recorded While Transporting Student
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether a school bus driver’s statements surreptitiously recorded by a voice-activated tape recorder in the student’s backpack were suppressible under WESCL.
Holding:
¶2 The dispositive issue in this appeal is whether Duchow’s tape-recorded statements were “oral communication” as defined in Wis.
Frisk – Generally
State v. Nathaniel L. Sumner, 2008 WI 94, reversing unpublished opinion
For Sumner: Craig Albee, Carol S. Josten
Issue/Holding:
¶23 Our protective search or “frisk” jurisprudence has consistently emphasized that the totality of all circumstances present and known to the officer must be taken into account to assess the legality of the procedure. Naturally, some factors will be of greater import than others in the reasonable suspicion calculus in a particular case.
Routine Traffic Stop — Routine Traffic Stop – Duration – Extension by 78 Seconds to Perform Dog Sniff
State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue: whether extending a routine traffic stop by 78 seconds so that a dog could perform (without reasonable suspicion) a “drug sniff” amounted to an unlawful seizure.
Holding:
¶34 … . There remains no hard-and-fast time limit for when a detention has become too long and therefore becomes unreasonable.
§ 940.225(7), Sexual Intercourse with Corpse – Defendant Didn’t Cause Death
State v. Alexander Caleb Grunke / State v. Dustin Blake Radke, 2008 WI 82, reversing 2007 WI App 198
For Grunke: Suzanne Edwards
For Radke: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim.
Expectation of Privacy, Generally
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding
¶21 This second component reflects that protections from unreasonable searches and seizures, as described in the Fourth Amendment of the federal constitution [15] as well as Article I, § 11 of the state constitution, [16] must be determined by reference to the “‘scope of privacy that a free people legitimately may expect.’”
§ 943.20(1)(b) and (3)(c) – Theft as Trustee/Bailee in Business Setting – Elements – Sufficiency of Evidence
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding:
¶57 Next, we address Doss’s argument that there was insufficient evidence to support her conviction under Wisconsin Statute § 943.20(1)(b). Doss correctly recites the elements the State was required to establish to obtain a conviction: that (1) she had possession of money as a result of her position as a personal representative of her father’s estate;