On Point

decision below (unpublished); for Marinez: Ralph Sczygelski

Issues (as provided by the court):

Did the circuit court erroneously exercise its discretion by admitting other acts evidence of the minor child’s videotaped statement without excerption of the hand-burning references?

Did the court of appeals err by applying the de novo standard of review to the circuit court’s decision admitting the minor child’s videotaped statement without excerption of the hand-burning references?

Freddie L. Byers, Jr., v. Basinger, 7th Cir No. 09-1833, 7/9/10

7th Circuit decision

Habeas – Exhaustion

To exhaust a federal claim, a 2254 petitioner must have “fairly presented” it to the state court.

… We use four factors to evaluate whether a petitioner has “fairly presented” his claim: “1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts;

7th Circuit decision

Abstention – SVP Proceeding

The Younger v. Harris abstention doctrine applies to pending ch. 980 proceedings.

What is true is that a person who is in state custody awaiting a determination by the state courts of the legality of his custody may seek federal habeas corpus to challenge that custody without being barred by the Younger doctrine if immediate federal intervention is necessary to prevent the challenge from becoming moot.

Estate of Robert C. Parker v. Beverly Enterprises, Inc., 2010 WI 71

The supreme court is empowered to review denial of a petition for leave to appeal non-final order by the court of appeals.

¶45 The language of our case law is strong. We have stated that “[w]here the court of appeals denies permission to appeal from an order conceded by the parties to be nonfinal,

State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply

Jury Instructions – Exposing Child to Harmful Materials

The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.

¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law.

Dane Co. DHS v. Brittany W., No. 2009AP2778, District IV, 7/8/10

court of appeals decision (1-judge; not fo publication); for Brittany W.: Lora B. Cerone, SPD, Madison Appellate

The court rejects Brittany’s claim she didn’t understand the consequence of her no-contest plea (that she would be deemed unfit, and that disposition would turn on the child’s best interests), given the trial judge’s finding that the denial of such knowledge wasn’t credible,

State v. Raymond A. Habersat, No. 2009AP976-CR, District I, 7/7/10

court of appeals decision (3-judge; not recommended for publication); for Habersat: Angela Conrad Kachelski; BiC; Resp.; Reply

Evidence – Extraneous Misconduct

On Habersat’s trial for first-degree sexual assault of a child, admission of evidence of his 1991 sexual assault of a child to establish motive and intent was a proper exercise of discretion,

State v. Michael J. Grabowski, No. 2009AP2118-CR, District I, 7/7/10

court of appeals decision (3-judge; not recommended for publication); for Grabowski: Jamie F. Wiemer; BiC; Resp.; Reply

Sentencing – Accurate Information

¶5        Grabowski argues that the circuit court sentenced him based on inaccurate information. A defendant claiming that a sentencing court relied on inaccurate information must show that: (1) the information was inaccurate;

State v. Olu A. Rhodes, No. 2009AP25, District I, 7/7/10; reversed, 2011 WI 73

court of appeals decision (3-judge; not recommended for publication), reversed, 2011 WI 73; for Rhodes: John J. Grau; BiC; Resp.; Reply

¶10      A defendant’s “right to confront and to cross-examine is not absolute[,]” however, and “‘trial judges retain wide latitude … to impose reasonable limits.’” Id.

State v. Jim H. Ringer, 2010 WI 69, reversing unpublished opinion; for Ringer: Thomas O. Mulligan; BiC; Resp.; Reply

¶3   We conclude that the circuit court erroneously exercised its discretion when it granted Ringer’s motion in limine, allowing him to introduce at trial evidence that the child complainant made prior allegedly untruthful allegations of sexual assault against her biological father.