On Point blog, page 96 of 104
Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – increased charge following hung jury
State v. Hayes Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, reversing State v. Johnson, 223 Wis. 2d 85, 588 N.W.2d 330
For Johnson: Russell D. Bohach
Issue1: Whether a presumption of prosecutorial vindictiveness arises from an increase in the charge following grant of mistrial due to hung jury.
Holding: No presumption of prosecutorial vindictiveness applies to an increase in charges following mistrial due to hung jury.
Enhancer — § 939.62(2m)(d), Persistent Offender — Life Without Parole — Cruel and Unusual Punishment
State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, on certification; clarified on reconsideration, on a different point, 2001 WI 6
For Hahn: Steven G. Bauer
Issue: “(W)hether the persistent repeater penalty enhancer as applied to the defendant violates the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment.” ¶5.
Holding: Imposing a life sentence without possibility of parole,
Enhancers — Collateral Attack on, as Part of Sentencing Proceeding
State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, clarified on reconsideration, 2001 WI 6, on certification
For Hahn: Steven G. Bauer
Issue: “(W)hether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing,
Reasonable Suspicion – Frisk – Scope of Search
State v. Jose C. McGill, 2000 WI 38, 234 Wis. 2d 560, 609 N.W.2d 795, affirming unpublished decision
For McGill: Steven P. Weiss, SPD, Madison Appellate
Issue1: Whether seizing an object from the suspect’s pocket exceeded the permissible scope of a Terry frisk
Holding: Because the object’s size, shape and feel were consistent with a pocket knife; and the suspect lied to the officer about the nature of the object ,and was nervous and kept reaching for his pocket knife despite being told not to,
Warrants – No-Knock Authorization – Sufficiency of Showing of Danger
State v. Rayshun D. Eason, 2000 WI App 73, 234 Wis. 2d 396, 610 N.W.2d 208, affirmed in pertinent part, but reversed on other grounds, 2001 WI 98, ¶¶21-26
For Eason (in SCt): Suzanne Hagopian, SPD, Madison Appellate
Issue: Whether the no-knock warrant was supported by reasonable suspicion that announcing police presence would create danger.
Holding: The showing wasn’t sufficient to abrogate announcement: though the warrant noted the occupants’
Warrants – Probable Cause – Drug Dealing Nexus to Dealer’s Residence
State v. Lance R. Ward, 2000 WI 3, 231 Wis.2d 723, 604 N.W.2d 517, reversing 222 Wis. 2d 311, 588 N.W.2d 645
For Ward: Daniel P. Dunn
Issue: Whether the search warrant established probable cause despite the absence of an explicit connection between the owner’s alleged drug dealing and his residence.
Holding: The supporting affidavit’s assertion that the defendant was a drug supplier “who lives on Rocye”
First Amendment – Overbreadth – Video Showing Nudity, § 944.205 (1999-2000)
State v. Scott L. Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 72, on certification
For Stevenson: Elizabeth Cavendish-Sosinski, Daniel P. Fay
Issue: Whether § 944.205(2)(a) is overbroad.
Holding: Yes. § 944.205(a) (a) prohibits depictions of nudity without the person’s knowledge and consent. Because this statute implicates first amendment rights, the state assumes the burden of proving its constitutionality beyond a reasonable doubt.
Reasonable Suspicion – Frisk – drug investigation – auto
State v. Roosevelt Williams, 2001 WI 21, on remand from U.S. S.Ct., 529 U.S. 1050 (2000), previously reported: 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: Whether the police had reasonable suspiciion to conduct a “protective search”
§ 940.23(1), Reckless Injury — “Utter Disregard for Human Life”
State v. Stephen L. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170, affirming unpublished decision
For Jensen: James L. Fullin, SPD, Madison Appellate
Issue1: Whether the first degree reckless injury (§ 940.23(1)) element of “utter disregard for human life” requires proof of the actor’s subjective awareness of the risk of death.
Holding: “¶17 Although ‘utter disregard for human life’ clearly has something to do with mental state,
Exigency – Hot Pursuit – Reported Burglary in Progress
State v. Patrick E. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, reversing State v. Richter, 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999)
For Richter: Susan Alesia, SPD, Madison Appellate
Issue/Holding:
¶29 There are four well-recognized categories of exigent circumstances that have been held to authorize a law enforcement officer’s warrantless entry into a home: 1) hot pursuit of a suspect,