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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.

State v. Gregg B. Kandutsch, No. 2009AP1351-CR, review granted 1/11/11

decision below: unpublished; for Kandutsch: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Issues (formulated by On Point):

Whether admission into evidence of electronic monitoring daily summary reports requires expert testimony to lay a foundation as to accuracy and reliability.

Whether the daily summary reports fall outside the definition of hearsay because they don’t represent assertions made by a person.

Kandutsch, while under electronic monitoring,

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State v. Deandre A. Buchanan, No. 2009AP2934-CR, review granted 1/11/11

decision below: unpublished; for Buchanan: Tyler William Wickman; case activity

Issue (formulated by On Point):

Whether, during the course of a routine traffic stop, the police developed reasonable suspicion to believe Buchanan armed and dangerous so as to perform a “protective search” of his car.

The court relied on the following to show reasonable suspicion to believe Buchanan armed and dangerous, during an otherwise routine stop for speeding:

  • “furtive movements”
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State v. Edwin Clarence West, No. 2009AP1579, review granted 1/11/11

decision below: unpublished; for West: Ellen Henak, SPD. Milwaukee Appellate; case activity

Issue (formulated by On Point):

Whether, as a matter of statutory construction, due process and equal protection, the burden of proof on a § 980.08(4)(cg) petition for supervised release of a sexually violent release is on the State.

A technical issue, but one significant to ch. 980 practice. The issue was decided adversely in State v.

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Expert Opinion – “Jensen” Testimony – Failure to Object; Comment on Another Witness’s Truthfulness – Failure to Object;Ineffective Assistance – Prejudice

State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10

court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply

Expert Opinion – “Jensen” Testimony – Failure to Object

An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s,

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Pre-“Daubert” Expert-Opinion Caselaw

Caselaw prior to amendments to §§ 907.01-.03 may be found: here. These sections were amended by 2011 Wis Act 2 (eff. date 2/1/11), as follows:

907.01 Opinion testimony by lay witnesses. (intro.) If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally all of the following:

(1) Rationally based on the perception of the witness and helpful.

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Speedy Trial – Belated Disclosure of Exculpatory Evidence

State v. Daniel W. Kohel, 2010AP1057-CR, District 2, 1/12/11

court of appeals decision (1-judge, not for publication); for Kohel: Andrew Mishlove; case activity; Kohel BiC; State Resp.; Reply

Prosecutorial delay, measuring at least 2 years and perhaps longer, in disclosing potentially exculpatory evidence violated Kohel’s right to speedy trial and therefore supports dismissal with prejudice of the pending charge.

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State v. Chad W. Ebert, 2010AP1431-CR, District 2, 1/12/11

court of appeals decision (1-judge, not for publication); for Ebert: Chad A. Lanning; case activity; Ebert BiC; State Resp.; Reply

Consent-Based Entry

¶7        The Fourth Amendment’s warrant requirement does not apply when police have consent to enter a dwelling.  State v. Douglas, 123 Wis. 2d 13, 18, 365 N.W.2d 580 (1985).  The issue in this appeal is whether Ebert’s uncle consented to the search of Ebert’s residence,

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Blood Test Admissibility – Lab Tech Qualifications, Blood Draw

State v. Craig A. Erickson, 2010AP1763-CR, District 2, 1/12/11

court of appeals decision (1-judge, not for publication); for Erickson: Kirk B. Obear; case activity; Erickson BiC; State Resp.; Reply

Laboratory assistant, acting under direction of pathologist and following laboratory procedures, is qualified under § 343.305(5)(b) to draw blood. State v. Penzkofer, 184 Wis.

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Traffic Stop – Speeding

State v. Thomas R. Paulick, 2010AP1883, District 2, 1/12/11

court of appeals decision (1-judge, not for publication); for Paulick: Robert C. Raymond; case activity; Paulick BiC; State Resp.; Reply

The officer’s conclusion of speeding may be based on a visual estimate “while looking in his rear view mirror,” ¶8, citing City of Milwaukee v.

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Guilty Plea Colloquy – Plea Questionnaire; Plea Bargain – Breach: Waiver Doctrine

State v. Henry Edward Reed, Jr., 2009AP3149-CR,  District 1, 1/11/11

court of appeals decision (3-judge, not recommended for publication); for Reed: Basil M. Loeb; case activity; Reed BiC; State Resp.

Guilty Plea Colloquy – Plea Questionnaire

Reed’s claim that he didn’t understand the significance of read-in offenses is defeated by their coverage in the plea questionnaire, and the plea court’s eliciting “that Reed had not only read the form,

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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.