On Point blog, page 52 of 104
Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right: § 968.135, Subpoena Procedure for Production of Documents – Suppressibility of Documents Themselves
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue: Whether documents produced in violation of § 968.135 subpoena procedure are suppressible.
Holding:
¶30 The State concedes, and properly so, that contrary to the requirements of Wis. Stat. § 968.135 no showing of probable cause was made to the circuit court before the circuit court issued the subpoenas.
Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right: § 968.135, Subpoena Procedure for Production of Documents – Suppressibility of Statements Made When Confronted with Improperly Subpoenaed Documents
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue: Whether statements made when confronted with documents produced in violation of § 968.135 subpoena procedure are suppressible.
Holding:
¶81 The defendant’s motion to suppress the incriminating statements in the present case is substantially similar in nature to a motion to quash the subpoena.
Securities Fraud, § 551.41(2) – Elements – Sufficiency of Evidence
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue/Holding:
¶29 The State was required to prove three elements beyond a reasonable doubt to convict LaCount of securities fraud. First, the prosecution had to establish that LaCount sold Wills a security, here, an investment contract. Wis. Stat. § 551.41. Second, the prosecution had to prove that LaCount made an “untrue statement of a material fact or [omitted] to state a material fact necessary in order to make the statements made,
§ 901.03, Plain Error – Generally
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶21 Wisconsin Stat. § 901.03(4) (2003-04) recognizes the plain error doctrine. [3] The plain error doctrine allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78,
Plain Error, § 901.03(4) – Prosecutor’s Closing Argument as Violating Confrontation
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision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,
Plea Bargains — Validity: Enforceability of “Internally Inconsistent” Terms
State v. Sou W. Her, 2008 WI 39, dismissing as improvidently granted, review of unpublished decision
For Her: Donald J. Chewning
Issue/Holding:
¶2 This case involves Her’s agreement to plead guilty in exchange for an aggregate 15-year sentence recommendation from the State (10-years initial confinement with 5-years extended supervision). The record clearly indicates that the district attorney intended Her’s 15-year sentence to match what was believed to be the sentence of Her’s co-defendant,
Particular Examples of Misconduct, § 904.04(2) – Recognizance Bond as Documentary Proof of Defendant’s Connection to Place Where Drugs Founds – Criminal History Generally Inadmissible
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decisionFor Harris: Ralph J. Sczygelskis
Issue/Holding: A document, identified to the jury as “recognizance of bond in a criminal case … by the defendant,” found in the same room as a controlled substance and meant to show his connection to the drug, was inadmissible:
¶82 Criminal History Generally Inadmissible. Ordinarily evidence of a defendant’s criminal history is not admissible because when such evidence is admitted,
Expert Testimony – Opinion as to Issue of Domestic Law
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue: Whether the circuit court erroneously admitted an attorney’s expert opinion testimony that LaCount had engaged in a securities transaction.
Holding:
¶19 As noted previously, appellate courts use the deferential erroneous exercise of discretion standard when reviewing a circuit court’s decision to admit expert testimony.
§ 940.21, Mayhem – Elements – Generally – Includes “Forehead”
State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner
Issue/Holding:
¶70 To constitute mayhem, the State must show that the defendant had (1) the specific intent to disable or disfigure; (2) by cutting or mutilating the tongue, eye, ear, nose, lip, limb, or other bodily member;
Defenses – Statute of Limitations, § 939.74 – Version Applicable to Since-Repealed, Ch. 944 Offense
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak
Issue/Holding: Alleged violations, between 1965 and 1972, of since-repealed ch. 944 sexual assault statutes come within the statute of limitations provision extant during that time frame.
There is, of course, a whole lot more to it than that, at least in terms of getting to that point,