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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.
State ex rel. Tran v. Speech, 2009AP559-CR, District II, 3/31/2010
court of appeals decision; pro se; Resp. Br.
Appellate Procedure – Record Document not Included on Appeal
¶8 n.7:
To any extent that it is relevant to our analysis, we assume that the missing transcript of the March 23, 2009 hearing on the merits supports the circuit court’s ruling. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct.
Child Enticement, § 948.07: “Secluded Place”
State v. Mitchell D. Pask, 2010 WI App 53; for Pask: Jefren E. Olsen, SPD, Madison Appellate; Resp. Br.; Reply Br.
¶1 … (W)hen there is evidence that a defendant has an intention to take a child to a place that is partially screened or hidden from view, a jury may find that it is with the purpose to take the child away from public safety.
Child Pornography: Knowing Possession – Viewing Digital Image on Computer
State v. Benjamin W. Mercer, 2010 WI App 47; prior history: Certification, 7/1/09, rejected 9/10/09; for Mercer: Steven P. Sager
A person can knowingly possess images of child pornography while viewing them on a computer, even though they aren’t stored on the hard drive.
¶29 Our impression of these cases is that courts are more concerned with how the defendants got to the website showing child pornography,
Appellate Procedure: Standard of Review: Government Informant – Documentary Evidence; Confessions, 6th Amendment: Jailhouse Snitch
State v. Carl A. Lewis, Jr., 2010 WI App 52; for Lewis: John T. Wasielewski; Resp. Br.; Reply Br.
Appellate Procedure – Standard of Review: Government Informant
¶16 Our discussion must begin, as it almost always does, with the standard of review. In deciding whether a person is a government informant or agent for purposes of this Sixth Amendment analysis, the determination regarding the relationship or understanding between the police and the informant is a factual determination.
Habeas Review: Jury Selection Process
Berghuis v. Smith, USSC No. 08-1402, 3/30/10
Defendants have Sixth Amendment right to impartial jury drawn from fair cross section of community. To establish prima facie violation of this “fair-cross-section,” requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Various methods have been proposed to test underrepresentation,
State v. Lazorus Lidell, 2009AP1191-CR, District I, 3/30/2010
court of appeals decision (3-judge; not recommended for publication); for Lidell: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.
Ineffective Assistance
Failure to impeach complainant with various prior inconsistent statements either adequate strategy or non-prejudicial; failure to call witnesses proper strategy, where attorney interviewed them and determined “that their demeanor would not help the defense.”
State v. John E. Brown, 2009AP1498-CR, District I, 3/30/2010
court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.
Conditional Jail Time
“Applying the plain language of § 973.09(4)(a), it is clear that straight confinement time may be imposed as a condition of probation, and that although the trial court ‘may grant’ work-release privileges, it is not required to do so.” It follows that such privileges may be revoked,
State v. Alexis O. West, 2009AP1619-CR, District I, 3/30/2010
court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.
Ineffective Assistance
Machner hearing not required because record “conclusively demonstrates” no deficient performance; nor can prejudice be shown from asserted deficiency.
State v. Thomas G. Hennessey, 2009AP2100-CR, District III, 3/30/2010
court of appeals decision (1-judge; not for publication)
Traffic Stops
No seizure, given that police neither “prompted” Hennessey to park car not blocked him in; therefore reasonable suspicion not necessary to approach car.
State v. Janet A. Conner, 2008AP1296-CR, Wis SCt review grant, 3/16/10
decision below: 2009 WI App 143; for Conner: Steven J. House
Issues:
What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?
Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?
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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.