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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.
Plea-Withdrawal – Hearing – Exculpatory Evidence
State v. William M. O’Donnell, 2009AP2962, District 2, 11/17/10
court of appeals decision (1-judge, not for publication); for O’Donnell: Walter Arthur Piel, Jr.; O’Donnell BiC; State Resp.; Reply
Because the evidence allegedly suppressed by the State wasn’t exculpatory, O’Donnell wasn’t entitled to an evidentiary on his postconviction motion asserting suppression of exculpatory material.
¶10 A circuit court, in its discretion,
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,
Exculpatory Evidence Preservation; Right to Inform Jury of Evidence Destruction
State v. Joshua Lashawn Munford, 2010 WI App 168 (recommended for publication); for Munford: Joseph L. Sommers; Munford BiC; State Resp.; Reply
Munford’s claim that police destruction of his van violated due process is rejected, because the van didn’t have apparent exculpatory value. His defense against the homicide charge was that someone else fired shots that went through the van and struck the victim who was on the street.
Unlawful Use of Phone – Sufficiency of Evidence; Best Evidence Rule; Citation of Unpublished Caselaw
State v. Kurt Daniel Schmidt, 2010AP1104-CR, District 3, 11/16/10
court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; Schmidt BiC; State Resp.; Reply
Unlawful Use of Phone – Sufficiency of Evidence
Evidence held sufficient to sustain conviction for violating § 947.012(1)(c). The second of two calls anonymously made by Schmidt in a matter of minutes to his wife during a pending divorce with custody in dispute,
Appellate Procedure – Sanctions and Inadequate Argumentation
State v. Michael E. Ballenger, 2010AP664-CR, District 3, 11/16/10
court of appeals decision (1-judge, not for publication); for Ballenger: Ryan D. Lister; Ballenger BiC; State’s Resp.
Appellate Procedure – Sanction
Ballenger’s brief’s appendix does not include any portion of the suppression motion hearing transcript—neither deputy Campbell’s testimony nor the court’s factual findings or reasoning for denying the motion. Yet, as required by rule,
Hearsay – Against-Interest Statement
State v. Devon A. Sheriff, 2009AP3095-CR, District 1, 11/16/10
court of appeals decision (3-judge, not recommended for publication); for Sheriff: Jeffrey W. Jensen; Sheriff BiC; State Resp.
Sheriff, convicted at jury trial of participating in drug sale, unsuccessfully appeals trial judge’s refusal to admit into evidence codefendant’s statements.
¶12 We conclude that the statements that Sheriff sought to admit were properly excluded because they were irrelevant.
Appellate Procedure – Affirmance on Different Theory; Search & Seizure – Plain View
State v. Jason W. Kucik, 2009AP933-CR, District 1, 11/16/10
court of appeals decision (3-judge, not recommended for publication); for Kucik: Thomas J. Nitschke; Resp. Br.; Reply; Kucik Supp. Br.; State’s Supp. Br.
Appellate Procedure – Affirmance on Different Theory than Posited Below
¶31 We agree with the State that it is appropriate for us to consider the alternate basis to affirm the trial court that the State raised for the first time at oral argument.
Charles Andrew Fowler, aka Man v. U.S., USSC No. 10-5443, Cert Granted 11/15/10
Decision below (CTA 11)
Question Presented (phrasing by On Point; check Docket or Scotusblog links for subsequent posting of official recitation)
Whether conviction under 18 U.S.C. § 1512(a)(1)(C) (murder with intent to prevent a person from communicating information about federal offense to federal law enforcement officer or judge) requires proof of an ongoing or imminent federal investigation.
No immediately apparent implications for state practice in this grant.
Jose Tolentino v. New York, USSC No. 09-11556, Cert. Granted 11/15/10
Dismissed as improvidently granted, 3/29/11
Decision below (New York Court of Appeals)
Question Presented (phrasing by On Point; check Docket or Scotusblog links for subsequent posting of official recitation)
Whether someone’s driving record is suppressible as the fruit of an illegal stop or arrest.
A mere 6 days ago, Mr. Badger raised an alert on the core of this issue:
Off-Point: Mr. Badger’s Weekend Links
Legal Ethics; or: Lawyers Behaving Badly
First amendment rights for lawyers?
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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.