On Point

State v. Antonio D. Brown, 2013 WI App 17, petition for review granted 10/15/13; case activity

Police lacked probable cause to stop Brown for a defective tail lamp, § 347.13, based on one unlit bulb (out of four) in the tail lamp assembly:

¶19 The parties agree with the circuit court’s finding that the police officers stopped the vehicle because “the middle” rear tail light on the driver’s side of the vehicle was unlit.

Rafel Arriaza Gonzalez v. Thaler, USSC No. 10-895, 1/10/12, affirming 623 F. 3d 222 (5th Cir. 2010)

Habeas Procedure – Certificate of Appealability, Defects and Jurisdiction 

… 28 U. S. C. §2253(c), provides that a habeas petitioner must obtain a certificate of appealability (COA) to appeal a federal district court’s final order in a habeas proceeding. §2253(c)(1). The COA may issue only if the petitioner has made a “substantial showing of the denial of a constitutional right,”

Juan Smith v. Cain, USSC No. 10-8145, 1/10/12

Statements by the sole eyewitness, who identified Smith at trial as one of the perpetrators, that in fact he couldn’t see the faces of the perpetrators were “material” to determination of Smith’s guilt. Therefore, the state’s failure to disclose these statements before trial violated Smith’s due process right to exculpatory evidence.

Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.

Barion Perry v. New Hampshire, USSC No. 10-8974, 1/11/12, affirming State v. Perry (N.H. sup. ct. 11/18/10)

For purposes of due process, a pretrial identification isn’t suppressible unless the product of improper law enforcement activity.

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.1 Our decisions,

City of Beloit v. Steven A. Herbst, Sr., 2010AP2197, District 4, 1/12/12

court of appeals decision (1-judge, not for publication); for Herbst: Tracey A. Wood; case activity

Evidence held sufficient to support OWI conviction, where Herbst was found in parked car, slumped over the steering wheel with the engine running, along with evidence that the designated driver gave Herbst the keys to the vehicle so he could go to sleep. 

State v. Heather M. Kolman, 2011AP1917-CR, District 4, 1/12/12

court of appeals decision (1-judge, not for publication); for Kolman: John C. Orth; case activity

 Scope of a concededly proper traffic stop (for defective brake light) wasn’t unlawfully expanded by testing Kolman for signs of intoxication (reciting alphabet; “mini” HGN test).

¶15      Most relevant here, and as discussed further below, a lawful seizure “becomes unreasonable when the incremental liberty intrusion resulting from the investigation supersedes the public interest served by the investigation.”  Arias,

State v. Leon A. Wedde, 2011AP130-CR, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); pro se; case activity

The trial court dismissed with prejudice the pending charge when the prosecutor was unable to proceed on the scheduled date. The State argues that dismissal should have been without prejudice, and the court of appeals agrees that the trial court erroneously exercised discretion on this point,

State v. Frederick W. Scheuers, 2011AP1709-CR, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); for Scheuers: Jeffrey Mann; case activity

Sentence of 7 months for criminal damage to property, upheld as proper exercise of discretion.

¶9        Scheuers acknowledges that the trial court “took into account and properly stated on the record what [it] believed was an appropriate response in addressing the needs for protecting the public,

Racine County HSD v. Roseannah M. H., 2011AP1776, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); for Roseannah: Patrick Flanagan; case activity

On this TPR appeal by the County, the court of appeals upholds an order granting Roseannah’s motion to withdraw her admission to grounds. Such an admission must be knowing, intelligent and voluntary, per colloquy governed by § 48.422(7) and due process, ¶5,

State v. Cortez Ramon Brooks, I, 2010AP2454-CR, District 1, 1/10/12

court of appeals decision (not recommended for publication); for Brooks: Ann T. Bowe; case activity

The trial court immediately struck non-responsive testimony of a jailhouse informant that Brooks had admitted to “multiple homicides.” Denial of a subsequent motion for mistrial based on this testimony is upheld as an appropriate exercise of discretion.

¶18      First, any prejudice from Burks’s answer was cured by the trial court immediately striking the answer upon Brooks’s motion.