Explore in-depth analysis
On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
Confrontation – Dying Declaration; Hearsay – Prior Inconsistent Statements
State v. Marvin L. Beauchamp, 2011 WI 27, affirming 2010 WI App 42; for Beauchamp: Craig S. Powell; case activity
Confrontation – Dying Declaration, § 908.045(3)
¶34 We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception.
Miranda – “Interrogation”
State v. Randy L. Martin, 2010AP505-CR, District 1, 5/3/11
court of appeals decision (3-judge, not recommended for publication), reversed, 2012 WI 96; for Martin: Byron C. Lichstein; case activity
Although Martin was in custody and had not received Miranda warnings, his statement wasn’t the result of “interrogation” and therefore wasn’t suppressible. When it appeared that Martin’s uncle was going to be arrested for possessing a gun found in their car,
Conspiracy, § 939.31: “Overt Act”; Guilty Plea Factual Basis: de novo Review
State v. Eliseo Peralta, 2011 WI App 81(recommended for publication); for Peralta: Martin J. Pruhs; case activity
Conspiracy, § 939.31 – “Overt Act”
The “overt act” element of conspiracy, though it must go “beyond mere planning and agreement,” may be “virtually any act,” even if “insignificant,” ¶¶19-21. Thus, Peralta’s “communication to an undercover police detective that a large quantity of cocaine was ready for immediate delivery”
Gordon E. Sussman v. Jenkins, 7th Cir No. 09-3940, 4/28/11
in-chambers opinion on motion to stay mandate
Habeas – Stay of Mandate
The State’s request to stay the mandate in the court’s grant of relief is denied by Judge Ripple’s in chambers opinion. The standard for granting a stay is set forth in Books v. City of Elkhart, 239 F.3d 826, 828 (7th Cir. 2001):
When a party asks this court to stay its mandate pending the filing of a petition for a writ of certiorari,
Habeas – Death Penalty Phase Instructions
Bobby v. Harry Mitts, USSC No. 10-1000, 5/2/11 (per curiam)
The death penalty may not be imposed when the jury isn’t permitted to consider a verdict of guilt on a lesser included, non-capital offense supported by the evidence, Beck v. Alabama, 447 U.S. 625 (1980). As the Court now notes:
such a scheme intolerably enhances the irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.” Id.,
Waiver of Right to Counsel under 6th Amendment during Interrogation
State v. Brad E. Forbush, 2011 WI 25, reversing 2010 WI App 11; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee; amicus: Colleen D. Ball, SPD, Milwaukee Appellate; case activity
Forbush’s 6th amendment right to counsel had already attached – because a criminal complaint had been filed – and he had retained counsel before officers began interrogating him on that charge in the absence of his attorney.
Rape Shield Law – Interest of Justice Review
State v. Alan Keith Burns, 2011 WI 22, affirming unpublished decision; for Burns: David R. Karpe; case activity
The court rejects Burns’s claim for a new trial in the interest of justice premised on three grounds: 1. Burns was unable to cross-examine the complainant on her implication that he took her virginity; 2. evidence of prior sexual assaults of the complainant by his father,
John Lavin v. Rednour, 7th Cir No. 10-3318, 4/26/11
Habeas – Appeal: Appointed Counsel’s Obligation to Argue Issues
The court clarifies the “scope” of counsel’s responsibilities when appointed on habeas appeal. Counsel has no obligation to argue claims not certified for appeal by the court. Therefore, if after independent review, “counsel agrees that the non-certified claims are not debatable, he or she can safely set aside the non-certified claims notwithstanding the petitioner-appellant’s desire to pursue those claims on appeal.”
Traffic Stop – Probable Cause – Good-Faith Mistake of Fact
State v. Andrew R. Reierson, 2010AP596-CR, District 4, 4/28/11
court of appeals decision (1-judge, not for publication); for Reierson: John Smerlinski; case activity
The officer’s erroneous reading of Reierson’s license plate, causing the officer to wrongly believe that his registration had expired, nonetheless supported stop of the car under the good-faith rule.
¶11 We conclude the circuit court properly denied the motion to suppress because the officer had probable cause to stop Reierson for operating with an expired registration,
Mental Commitment – “Fifth Standard”
Dane County v. Kelly M., 2011 WI App 69 (recommended for publication); for Kelly M.: Ruth N. Westmont, Ashley J. Richter; case activity
Kelly M. appeals a commitment order premised on the “fifth standard,” inability by reason of mental illness to understand the advantages and disadvantages of medication or treatment for the mental illness.
¶3 We conclude as follows: (1) Commitment is available under the fifth standard for individuals who have dual diagnoses—that is,
Important Posts
Ahead in SCOW
Sign up
On Point is sponsored by Wisconsin State Public Defenders. All content is subject to public disclosure. Comments are moderated. If you have questions about this blog, please email [email protected].
On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.