On Point blog, page 92 of 104
Due Process / Right to Unanimous Verdict – Jury Agreement on Underlying Acts
State v. William G. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455
For Johnson: Martha K. Askins, SPD, Madison Appellate
Issue: Whether § 948.025 (repeated sexual assault of a child) violates the rights to due process and unanimous verdict by not requiring unanimity that each predicate act occurred.
Holding: Unanimity is required on the elements of an offense, but generally not the alternate modes of commission unless required by considerations of due process.
Reconstruction of Missing Transcript – Application for Search Warrant
State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang
Issue/Holding:
¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed.
SVP Commitments: Counsel – Effective Assistance, Appeal
State ex rel. Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reconsideration denied2002 WI 12, reversing unpublished court of appeals order
For Seibert: Gregory P. Seibold; amicus brief: Howard B. Eisenberg, Dean, Marquette Law School
Issue/Holding:
¶1. This case presents two issues. The first issue is whether an indigent sexually violent person, as defined by Wis.
Constitutional Defenses – Selective Prosecution
State v. Carl R. Kramer, 2001 WI 132, reversing and remanding 2000 WI App 271, 240 Wis. 2d 44, 622 N.W.2d 4
For Kramer: Stephen D. Willett
Issue1: Whether Kramer established a prima facie case for selective prosecution.
Holding: On a selective prosecution claim, the defendant must show both discriminatory purpose and effect. The state concedes discriminatory purpose. As to effect: Prosecutorial selectivity is itself non-problematic.
OAR/OAS – Rescission of HTO Status
State v. Jeremy J. Hanson, 2001 WI 70, 628 N.W.2d 759
For Hanson: James B. Connell
Issue: Whether DOT rescission of a defendant’s HTO status under § 351.09 “relates back” to the date of the charged offense so as to nullify that HTO classification and render him or her ineligible for enhanced sentencing.
Holding:
¶32. Given the accepted meaning of the language of § 351.09 and the legal effect attributable to ‘rescind’ and ‘rescission,’ we conclude that the effect of the Department’s recalculation of Hanson’s HTO status was an annulment and abrogation of that status from the outset of its existence.
Costs — Order to Produce
State v. Tronnie M. Dismuke, 2001 WI 75, 244 Wis. 2d 457, 628 N.W.2d 791, reversing and remanding, 2000 WI App 198, 238 Wis. 2d 577, 617 N.W.2d 862
For Dismuke: Richard D. Martin, William S. Coleman, SPD, Milwaukee Appellate<
Issue: Whether a defendant may have to bear costs of being produced from prison for court appearances.
Holding:
¶4 We reverse.
Reasonable Suspicion – Stop – Basis – anonymous tip
State v. Roosevelt Williams, 2001 WI 21, on remand, 529 U.S. 1050 (2000), previous history: State v. Roosevelt Williams, 225 Wis. 2d 159, 591 N.W.2d 823 (1999); State v. Williams, 214 Wis. 2d 412, 570 N.W.2d 892 (Ct. App. 1997)
For Williams: Melinda Swartz, SPD, Milwaukee Appellate.
Issue: “(W)hether an anonymous tip containing a contemporaneous report of drug trafficking,
Reasonable Suspicion – Stop – Duration – Traffic Offense – Prolonged by Questioning / Seeking Consent to Search
State v. Lawrence A. Williams/State v. Antwon C. Mathews, 2002 WI 94, reversing 2001 WI App 249, 248 Wis. 2d 361, 635 N.W.2d 869
For Williams: Thomas E. Knothe
For Mathews: Peter J. Thompson
Issue: Whether the traffic stop was unnecessarily prolonged so as to amount to an illegal seizure and invalidate consent to search the car.
§ 941.29, Felon in Possession of Firearm – “Handling” = Element of “Possesses”
State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363
For Black: Michael S. Holzman
Issue: Whether the defendant’s admission of “handling” a gun established the element of “possesses” a firearm under § 941.29(2), for purposes of establishing a guilty plea factual basis.
Holding:
¶19 At the outset, we note the absence of any mens rea5 requirement in this statute.
Double Jeopardy – Multiplicity: theft and concealment, §§ 943.20(1)(a) & (3)(d)5
State v. Jason J. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, affirming State v. Trawitzki, 2000 WI App 205, 238 Wis. 2d 795, 618 N.W.2d 884
For Trawitzki: Donald T. Lang, SPD, Madison Appellate
Issue: Whether multiple charges of theft of firearms taken at the same time, and multiple charges of concealing those firearms, violated double jeopardy.
Holding: Multiplicity is a two-part test: determine whether the offenses are identical in both law and fact;