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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.
Collateral Attack – Serial Litigation Bar
State v. Paul Dwayne Westmoreland, 2009AP2288, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Brief
¶14 Escalona-Naranjo requires that a defendant raise all grounds for postconviction relief in his or her first postconviction motion or in the defendant’s direct appeal. See id., 185 Wis. 2d at 185. A defendant may not pursue claims in a subsequent appeal that could have been raised in an earlier postconviction motion or direct appeal unless the defendant provides a “‘sufficient reason’” for not raising the claims previously.
Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing
State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Guilty Plea – Withdrawal – Presentence
The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.
The particular grounds asserted – no factual basis for plea;
Custodial Interrogation: Request for Counsel – Waiver of Rights – Invocation of Counsel – Assertion of Right to Silence
State v. Patrick E. Hampton, 2010 WI App 169 (recommended for publication); for Hampton: Michael S. Holzman; BiC; Resp.; Reply
Custodial Interrogation – Request for Counsel
To invoke the 5th amendment right to counsel during custodial interrogation, the suspect must assert the right unambiguously, something Hampton did not do.
¶30 Hampton alleges that detectives ignored him and continued to inappropriately question him five minutes into the July 20 interview,
Sentencing – Burden to Show Inaccurate Information
State v. Jason C. Walker, 2010AP83-CR, District 3, 11/2/10
court of appeals decision (recommended for publication); for Walker: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply
¶1 Jason Walker was sentenced after revocation of his probation. The sentencing court considered probation violations that Walker denied committing. Because of his denial, Walker argues the court could not consider the violations unless the State proved he committed them.
Reasonable Suspicion – Traffic Stop
Outagamie County v. Daniel C. Torreano, 2010AP978, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Torreano: Chad A. Lanning; BiC; Resp.; Reply
¶8 While this case also presents a relatively close call, we agree with the circuit court that the stop was supported by reasonable suspicion. That Torreano was observed driving in the early morning hours, within forty-five minutes of “bar time,” is a highly significant factor.
Curative Instruction; Theft by Fraud – Sufficiency of Proof
State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply
Curative Instruction
Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.
¶11 Not all errors warrant a mistrial,
J.D.B. v. North Carolina, USSC No. 09-11121, cert granted 11/1/10
Decision below (N.C. supreme court)
Question Presented:
Whether, in the context of interrogating a juvenile in a school setting, “custody” for purposes of triggering Miranda warnings is determined by a purely objective test; or includes subjective considerations such as the subject’s age and status as a special education student.
The nub of the lower court holding:
…
Turner v. Price, USSC No. 10-10, cert granted 11/1/10
Decision below (S.C. supreme court)
Questions Presented (courtesy, Scotusblog):
1) Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration; and 2) whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.
Turner got 12 months in jail for civil contempt for willful failure to pay child support (remedial contempt,
Davis v. U.S., USSC No. 09-11328, cert granted 11/1/10
Decision below (CTA11)
Question Presented (from cert petition):
Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional.
Fall-out from the Court’s decision in Arizona v. Gant, 556 U.S.
State v. Brian T. St. Martin, No. 2009AP1209-CR, review granted 10/27/10
decision below: certification; for St. Martin: Michael K. Gould, SPD, Milwaukee Appellate; court of appeals briefs: Resp.; Reply
Issue (from Table of Cases):
Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent,
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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.