On Point

decision below: 2009 WI App 161; for Patterson: David R. Karpe

Issues:

Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?

Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?

Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”

Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?

decision below: 2010 WI App 11; for Forbush: Craig Mastantuono; Rebecca M. Coffee

Issues:

Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation

Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial

Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v.

Village of West Salem v. Low, 2009AP2654, Dist IV, 3/25/2010

court of appeal decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Challenge to OWI-1st in municipal court fails for want of jurisdiction, where judgment had been entered in circuit court because at the time no local municipal court existed.

An obscure problem, to be sure, but possibly of enough interest to be disseminated.

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Miranda – Traffic Stop – Marijuana Odor and Probable Cause
Suppression of passenger’s statement due to custodial interrogation without Miranda warnings leaves police without probable cause to arrest driver:

¶7        First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. 

7th circuit court of appeals decision

Habeas – Ineffective Assistance – Extraneous Juror Influence
1. Where both defendant and homicide victim were African-American, in-court proclamation from latter’s mother that “the situation is racist” is deemed to be “ambiguous and apparently innocuous.” It follows that counsel’s failure to pursue the matter was reasonable.

Remmer v. United States, 347 U.S. 227 (1954) (unauthorized extraneous contact with juror creates presumption of prejudice and thus requires hearing),

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.

Instructions – Unanimity
Refusal to give unanimous verdict instruction re: continuing course of conduct (sexual assault) or mode of commission (ptac) upheld.

Evidence – Defendant’s Peaceful Character
Refusal to allow evidence of defendant’s peaceful character upheld, where the elements of the offense (4th degree sexual assault) didn’t involve violence.

court of appeals decision (1-judge; not for publication); Resp. Br.

Delinquency
Failure to receive discovery until, but not prior to, plea hearing didn’t render latter a nullity; and, under § 938.01(1), the court must liberally construe the juvenile justice code: “Dakota has presented no reason, nor do we see any reason, why his best interest would be served by dismissing the petition with prejudice.”

State v. Tory L. Rachel, 2010 WI App 60; for Rachel: Donald T. Lang, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.

SVP – Supervised Release Hearing: Burden of Proof on Petitioner

Under revisions to § 980.08 wrought by 2005 Wis. Act 434 (eff. date 8/1/06), the burden of proof has been shifted from the State (to prove unsuitability for supervised release) to the petitioner (to show suitability),

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Miranda – Suppressed Statement and Probable Cause

¶7        First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. The trial court found, and we agree, that Kohel’s statement was the result of a custodial interrogation and should be suppressed.

court of appeals decision (1-judge; not for publication)

TPR
Plea to grounds upheld, in light of trial court credibility determinations at post-termination evidentiary hearing, against claim Benny didn’t understand State’s burden of proof, 2-stage nature of TPR, or finding of unfitness as necessary consequence of plea.