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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.

PAC – Burden of Proof

State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10

court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply

Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence,

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TPR – Harmless Error

Waukesha County DH&HS v. Michelle P., 2009AP1087, District 2, 8/25/10

court of appeals decision (1-judge, not for publication); for Michelle P.: Eileen A. Hirsch, SPD , Madison Appellate

Authority of the local department to suspend visitation without judicial approval is an “interesting” issue, but one that need not be reached under these facts because the error if any was harmless:

¶11 We point out that, under Wis.

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Court of Appeals Publication Orders, 8/10

court of appeals publication orders, 8/25/10

On Point posts from this list:

2010 WI App 103 State v. Walter Allison, Jr.

2010 WI App 104 State v. Esteban M. Gonzalez

2010 WI App 107 State v. Tarence A. Banks

2010 WI App 113 State v. Wendy A. Brown

2010 WI App 114 Titus Henderson v.

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TPR- Ineffective Assistance – Change of Placement, Warnings; Disposition, Exercise of Discretion

State v. Jesenia R., 2009AP2906, District 1, 8/24/10

court of appeals decision (1-judge, not for publication); for Jesenia R.: Mary D. Scholle, SPD, Milwaukee Appellate

No prejudice resulted from counsel’s failure to object to violation of the change-of-placement notice requirement in § 48.357. ¶¶15-16.

The background is a bit fact-intensive. Roughly: The child (Elizabeth) had been placed with a foster family, who moved to Idaho and took Elizabeth with them,

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Disorderly Conduct – Sufficiency of Evidence

State v. Kurt D. Schmidt, 2010AP551-CR, District 3, 8/24/10

court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; BiC; Resp.; Reply

Conviction for disorderly conduct was established by evidence that Schmidt, following a contentious divorce, left messages on his ex-wife’s answering machine cautioning her “to question (her) own personal assurance and insurance,” and falsely reporting that her stepmother had died.

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Reasonable Suspicion – Traffic Stop

County of Milwaukee v. Katherine R. Harmon, 2010AP297, District 1, 8/24/10

court of appeals decision (1-judge, not for publication); for Harmon: Basil M. Loeb; BiC; Resp.

Traffic stop supported by reasonable suspicion of impaired driving based on: driving on lane-divider lines, crossing lane-divider by half-foot, and “jerkiness in … front steer tires.”

The court notes that while “merely weaving within the confines of a driver’s traffic lane is not sufficient to support reasonable suspicion sufficient to make a traffic stop …,

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Recorded Confessions; Sentence Credit – Predisposition Secure Detention

State v. Dionicia M., 2010 WI App 134; for Dionicia M.: Andrew Hinkel, SPD Madison Appellate

Recorded Confessions

The juvenile was in custody when she was directed to the locked back seat of a patrol car so that she could be transported back to school after being reported truant; and, because it was feasible under the circumstances to record her ensuing statement, failure to do so rendered it inadmissible.

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Terry Frisk – House; Ineffective Assistance – Prejudice

State v. Jacquese Franklin Harrell, 2010 WI App 132; for Harrell: Michael S. Holzman; BiC; Resp.; Reply

Terry Frisk – House

The police had both reasonable suspicion that Harrell had committed a violent crime, and consent to be in his house to question him. Therefore, police inspection of a chair for possible weapons before allowing Harrell to sit in it,

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Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence

State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.

Evidence – Daubert – Bullet Traced to Particular Gun

The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:

¶22 Unlike in the federal system,

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Jesse Friedman v. Rehal, 2nd Cir No. 08-0297, 8/16/10

2nd Circuit court of appeals decision

Federal Habeas (28 U.S.C. § 2254) – Filing Deadline – Brady Claim

The 2254 filing deadline is one year from the date the state-court conviction becomes “final,” subject to certain exceptions, including one which restarts the limitation period from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” 28 U.S.C.

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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.