On Point blog, page 32 of 104
Wisconsin Supreme Court rejects argument that Miranda protections apply when custody is “imminent”
State v. Matthew A. Lonkoski, 2013 WI 30, affirming unpublished court of appeals decision; case activity
About 30 minutes into being questioned by police about the death of his daughter, Matthew Lonkoski said he wanted a lawyer. (¶12). Under Edwards v. Arizona, 451 U.S. 477 (1981), the invocation of the right to counsel would mean the police had to cease interrogation unless Lonkoski reinitiated the interview.
Wisconsin Supreme Court holds counsel in merit appeal may refer to PSI without asking permission from any court
In the Matter of State v. Michael Buchanan: State ex rel. Office of State Public Defender v. Wis. Court of Appeals, District IV, 2013 WI 31, on review of petition for supervisory writ; case activity
In an important decision for all lawyers who handle criminal cases in the state appellate courts, the supreme court affirms that counsel for the defendant and the state do not need permission from a court to use,
Wisconsin Supreme Court: New fact-finding hearing before a jury is the proper remedy for erroneous grant of default judgment due to parent’s tardy appearance at second day of trial
Dane County DHS v. Mable K., 2013 WI 28, reversing court of appeals summary order; case activity
¶3 We conclude, and the circuit court has acknowledged, that it erroneously exercised its discretion when it entered a default judgment finding that grounds existed to terminate Mable K.’s parental rights after barring her attorney from offering additional evidence. It also erred when it granted the default judgment before taking evidence sufficient to establish the grounds alleged in the amended petitions.
Evidence excluded from state’s case-in-chief because of discovery violation is admissible in rebuttal; “sleeping juror” issue resolved by lack of finding that juror was sleeping
State v. Brent T. Novy, 2013 WI 23, affirming 2012 WI App 10; case activity
Evidence excluded from state’s case-in-chief because of discovery violation is admissible as rebuttal evidence
The trial court excluded the state from presenting fingerprint evidence in its case-in-chief because the state failed to properly disclose the evidence under Wis. Stat. § 971.23(1)(g). But after Novy testified, the court allowed the state to put the evidence in during its rebuttal case.
Search and seizure of vehicle — attaching GPS tracking device; warrant — scope, coverage of particular GPS device
State v. James G. Brereton, 2013 WI 17, affirming 2011 WI App 127; case activity
Search and seizure of vehicle — attaching GPS tracking device
After lawfully stopping Brereton, the police removed him from his car, towed it to a lot, and, after obtaining a warrant, attached a GPS tracking device. The car was returned to Brereton, and ensuing monitoring led to information connecting him to a crime.
Warrantless entry based on “community caretaker” exception; OWI — collateral attack on prior conviction
State v. Juan G. Gracia, 2013 WI 15; affirming unpublished court of appeals decision; case activity
Warrantless Entry – “community caretaker” exception
Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine because the police had an objectively reasonable basis to believe Gracia needed assistance, distinguishing State v.
Newly discovered evidence – reasonable probability jury would have reasonable doubt about guilt; new trial in interest of justice
State v. Brian Avery, 2013 WI 13 (Wis. S. Ct. 1/30/13), reversing 2011 WI App 148; case activity
The supreme court affirms the trial court’s denial of Brian Avery’s Wis. Stat. § 974.06 motion for a new trial based on newly discovered evidence, concluding there isn’t a reasonable probability a jury would have a reasonable doubt about Avery’s guilt. The court also holds Avery was not entitled to a new trial in the interest of justice.
Criminal convictions – collateral consequences
Jamerson v. Dep’t of Children and Families, 2013 WI 7
Wisconsin supreme court decision, affirming 2012 WI App 32, 340 Wis. 2d 215, 813 N.W.2d 221
This case is not directly applicable to SPD practice, but it is a useful reminder of the multitudinous collateral consequences that may attend a criminal conviction. Here’s the gist:
¶2 The new [2009] caregiver law [relating to child care licenses] imposes a lifetime ban on licensure,
Involuntary Statement – Coercion
State v. Dennis D. Lemoine, 2013 WI 5, affirming unpublished court of appeals decision; case activity
Lemoine’s inculpatory statement to the police was voluntary:
¶3 We hold that the admission of Lemoine’s statements at trial was not error because, under the totality of the circumstances, the statements were voluntary. The well-established test for voluntariness balances the personal characteristics of the defendant against pressures imposed by law enforcement officers to determine if the pressures exceeded the defendant’s ability to resist.
Supreme Court Justice Recusal
Memorandum Decision on Recusal in: Wisconsin Judicial Commission v. David T. Prosser, Jr., 2012 WI 104 (Justice Gableman); case activity; companion decisions: 2012 WI 103; 2012 WI 69, 2012 WI 43
¶1 On May 8, 2012, I received a letter from Kevin P. Reak, counsel for Justice David T. Prosser, Jr., filed with the court, requesting that I recuse myself from participation in the captioned matter.