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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.
Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense
State v. Morris L. Harris, 2009AP2833-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Lesser-Included Instruction – Battery
Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,
Community Caretaker – Frisk
State v. Dennis Butler, 2010AP864-CR, District 2, 10/13/10
court of appeals decision (1-judge, not for publication); for Butler: Kathleen A. Lindgren; BiC; Resp.
Frisk upheld, where initial contact came within community caretaker function, and Butler then gave cause to believe he was armed and dangerous.
¶13 We hold that Pergande properly exercised his community caretaker function during his entire encounter with Butler.
CCW – Constitutionality – Second Amendment
State v. Joshua D. Schultz, Clark County Case No. 10-CM-138, 10/12/10
Clark County circuit court decision; for Schultz: William Poss, SPD Trial, Black River Falls
The complaint in this matter alleges that on June 10, 2010, the defendant was carrying a concealed weapon, a knife in the waistband of his pants which was covered by his shirt. The State alleges this is contrary to section 941.23, Wis. Stats.
Evidence – Disorderly Conduct – Relevance
State v. Salvador Cruz, 2010AP911-CR, District 2, 10/13/10
court of appeals decision (1-judge, not for publication); for Cruz: Matthew S. Pinix; BiC; Resp.; Reply
Evidence of the effect of the defendant’s (alleged disorderly) conduct was relevant, without a showing of “proximity” to that conduct:
¶13 A.S. instructs that “[i]n addition to considering the potential effects of a defendant’s conduct in disorderly conduct cases … prior cases also indicate that the actual effects of a defendant’s conduct are probative.” Id.
Camreta v. Greene, USSC No. 09-1454 / Alford v. Greene, No. 09-1478, cert granted 10/12/10
Consolidated cases:
Camreta
Decision Below (9th Cir)
Question Presented (from SCOTUSblog):
Whether the Fourth Amendment requires a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused.
Bullcoming v. New Mexico, USSC No. 09-10876, cert grant 9/28/10
Decision Below (New Mexico supreme court)
Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
Follow-up to Melendez-Diaz v.
TPR – Summary Judgment on Grounds (Abandonment)
Nathan Y. v. Tarik T., 2010AP992, District IV, 10/7/10
court of appeals decision (1-judge, not for publication); for Tarik T.: Philip J. Brehm
The court rejects the argument that under Steven V. v. Kelley H., 2004 WI 47, ¶36, summary judgment is inappropriate when the ground alleged is abandonment.
¶7 … First, Steven V. explained that its discussion of the use of summary judgment procedure on grounds proven by documentary evidence versus those proven by non-documentary evidence was not “mean[t] to imply that the general categorization of statutory grounds in this and the preceding paragraph represent a definitive statement about the propriety of summary judgment in any particular case.” Id.
TPR – Telephonic Appearance
Grant Co. DSS v. Stacy K. S., 2010AP1678, District IV, 10/7/10
court of appeals decision (1-judge, not for publication); for Stacy K.: Donna L. Hintze, SPD, Madison Appellate
The circuit court may take the parent’s admission telephonically at the grounds phase of a TPR; neither § 48.422(7)(a) nor § 807.13 requires physical presence.
¶16 Addressing first the requirements of Wis. Stat. § 48.422(7)(a), the plain import of the requirement that the court “[a]ddress the parties present” is that the court engage in an on-the-record discussion,
Fleeing, § 346.04(3); Evidence – Character Trait of Victim
State v. Daniel H. Hanson, 2010 WI App 146 (recommended for publication), affirmed 2012 WI 4; for Hanson: Chad A. Lanning; case activity
Fleeing, § 346.04(3)
Can you criminally “flee” the police, if what you’re actually doing is driving to the nearest police station to escape what you believe to be a beating at the hands of the officer you’re fleeing?
State v. Lee Anthony Batt, 2010 WI App 155
court of appeals decision (recommended for publication); for Batt: Chad A. Lanning; BiC; Resp.; Reply
OWI – Implied Consent Law – § 343.305(5)(a) Testing
Construing State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994), the court concludes that the Implied Consent law affords the driver the right to choose testing administered by the law enforcement agency at no expense to the driver,
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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.