On Point blog, page 57 of 104
§ 940.09(2), Defense to Homicide by Intoxicated Use: Death Would Have Occurred Anyway – Admissibility of Evidence of Deceased’s Prior Conduct as Relevant to Intervening Cause
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen
Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and,
Expectation of Privacy – Automobile: Closed Container
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶32 Bruski argues that he had a reasonable expectation of privacy in his travel case, even if he did not have a reasonable expectation of privacy in Ms. Smith’s vehicle. The question of whether an individual may have a reasonable expectation of privacy in personal property found inside a vehicle that he or she does not have a reasonable expectation of privacy in has not been addressed by the United States Supreme Court.
§ 948.02(2) – Elements, in Relation to Defense of Rape By the Child
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶29 Lackershire’s second argument centers on the somewhat unique posture of this case. A violation of Wis. Stat. § 948.02(2) is generally viewed as a strict liability offense. Unlike other sexual assault offenses, where consent of the victim may be a central issue,
Consent – Acquiescence – Generally
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶16 When the purported legality of a warrantless search is based on the consent of the defendant, that consent must be freely and voluntarily given. State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998) (citations omitted).
Plea-Withdrawal – Pre-Sentence – “Fair and Just” Reason: Claim of Unrealized Benefit from Efforts to Cooperate with Law Enforcement
State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether Jenkins’ claim that he (wrongly) thought he would be guaranteed an opportunity to work with law enforcement in return for potential sentencing benefit was a fair and just reason to allow pre-sentencing plea withdrawal.
Holding:
¶71 First,
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Bangert Motion, Generally
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶27 A Bangert Motion. A defendant may invoke Bangert only by alleging that the circuit court failed to fulfill its plea colloquy duties. [16] A Bangert motion warrants an evidentiary hearing if (1) the motion makes “aprima facie showing that [the] plea was accepted without the trial court’s conformance with [Wis.
Plea-Withdrawal, Post-sentencing – Procedure – Challenge to Factual Basis
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Bangert procedure applies to challenge to failure to establish adequate factual basis where the facts are disputed:
¶50 In the present case, however, the facts are in dispute precisely because the circuit court failed to conduct a sufficient inquiry into the factual basis of the offense charged.
Contempt — Remedial, § 785.04(1) – Basis for Tuberculosis-Treatment Confinement
City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming, 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
Issue/Holding:
¶66 Moreover, we agree with Washington that remedial contempt was not an appropriate sanction in this case. A contemnor may be imprisoned “only so long as the person is committing the contempt of court.”
Guilty Pleas – Post-Sentencing Plea Withdrawal: Grounds — Coercion: Defendant’s Pregnancy
State v. Monika S. Lackershire, 2007 WI 74, affirming (this holding of) 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶62 Finally, we consider Lackershire’s argument that her plea was involuntary because she feared that the stress of trial would affect her pregnancy. …
…
¶64 Lackershire has raised no plausible argument that her plea was legally coerced.
Detainers – Interstate Agreement on Detainers – Generally
State ex rel Frederick Lee Pharm v. Bartow, 2007 WI 13, affirming 2005 WI App 215
For Pharm: Jon G. Furlow, Nia Enemuch-Trammell, Roisin H. Bell (Pro Bono Project)
Issue/Holding:
¶14 The IAD is an interstate compact that prescribes “procedures by which a member State may obtain for trial a prisoner incarcerated in another member jurisdiction and by which the prisoner may demand the speedy disposition of certain charges pending against him in another jurisdiction.”