On Point blog, page 59 of 104
Evidence – Sufficiency of Objection, Admissibility – Specificity of Ground Required
State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg
Issue: Whether a trial-level objection that a dismissed witness was unavailable for cross-examination on a prior statement was specific enough to preserve an appellate argument that the witness wasn’t given an opportunity to explain or deny the statement.
Holding:
¶31 The State argues that Nelis did not object at trial to the admission of the statements on the ground of Wis.
TPR – Right to Appearance by Counsel, Notwithstanding Parent’s Default in Failing to Personally Appear at Fact-Finding Phase
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order.” (¶2)
Holding:
¶41 We do not accept the State’s position for three reasons.
TPR – Right to Counsel, Waiver
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
¶57 The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be knowing and voluntary. As we determined in M.W.
TPR – Default as Sanction for Failure to Appear
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
Issue/Holding: ¶13 n. 3:
The circuit court did not order a default under Wis. Stat. § 806.02(5). Shirley E. had “appeared” at the hearing by her attorney. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis. 2d 1, 629 N.W.2d 768.The circuit court found Shirley E.
Jury – Selection – Bias / Disqualification – Employment by DA’s Office
State v. Dale L. Smith, 2006 WI 74, affirming unpublished decision
For Smith: Allison Ritter
Issue/Holding:
¶16 The sole question we must address on appeal is whether Smith was denied the right to an impartial jury by the circuit court’s refusal to strikeCharlotte for cause. Smith argues that Charlotte should have been disqualified as objectively biased because she was employed by the prosecuting attorney.
SVP – Trial: Evidence — Disposition Alternatives – Criminal Justice System Supervision Irrelevant
State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62, 2005 WI App 62
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether evidence of probation supervision was relevant to future dangerousness, and therefore should have been admitted into evidence.
Issue:
¶41 … (T)he plain language of Wis. Stat. § 980.01(7) makes the existence of a mental disorder—not any extrinsic factors—the first step in determining dangerousness and the substantial probability of the person engaging in future acts of sexual violence.
No-Merit Report – Generally
State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales
Issue/Holding: (Procedure generally described, State v. Christopher G. Tillman, 2005 WI App 71, ¶17, quoted with approval, ¶¶18-23; see also ¶¶35-41, taking note of Wilkinson v. Cowan, 231 F.3d 347 (7th Cir.
Presentence Report – Attorney General’s Right of Access, No-Merit Appeal
State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison
AppellateAmicus: Meredith J. Ross & William E. Rosales
Issue/Holding:
¶49 We conclude that the attorney general comes under the purview of Wis. Stat. § 972.15(4) and (4m) (2005-06) because, in criminal appeals, the attorney general is often the State’s successor to the district attorney. … We therefore conclude that under §§ 972.15 and 967.02(7) the attorney general’s office should submit any requests to obtain a copy of the PSI report and to disclose its contents in the State’s brief to the circuit court for the purposes of a no-merit appeal.
Sentence Modification – Necessity of Postconviction Motion, Even Following Resentencing
State v. Roger S. Walker, 2006 WI 82, affirming as modified summary order
For Walker: James Rebholz
Issue/Holding: In order to obtain review, a defendant must file a postconviction motion to modify sentence, even if the event was a re-sentencing which came to the same result as originally imposed.
¶37 In the hope of clarifying appellate procedure, we conclude that when a defendant seeks modification of the sentence imposed at resentencing,
Waiver of Issue: Judicial Communications with Jury during deliberations – Defendant’s Right to Presence
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
Issue/Holding:
¶36 The parties agree with the court of appeals that the circuit court’s communications with the jury outside the presence of the defendant is error, violating the defendant’s constitutional and statutory right to be present. We agree with the parties.…
¶63 (W)hatever the requirement for an accused’s waiver of the right to be present when a circuit court communicates with the jury,