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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 v. Clifford Dewayne Walker, 2008AP3180-CR, District I, 3/9/10
court of appeals decision (3-judge; not recommended for publication); Resp. Br; Reply Br
Exculpatory Material
Defense had access to assertedly suppressed exculpatory material, hence no Brady violation.
Effective Assistance
Counsel had valid tactical reason for cross-examination approach; failure to file discovery demand, object to certain testimony: “The defendant must affirmatively prove prejudice. … Walker has not even attempted to do so.
State v. Amonte Antoine Jackson, 2008AP3183-CR, District I, 3/9/2010
court of appeals decision (3-judge; not recommended for publication)
Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.
Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.
Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.
Sentencing Guidelines: General Purpose – Retroactive Repeal, § 973.017(2)(a); Statutory Construction: § 990.04
State v. Thomas H.L. Barfell, 2010 WI App 61; for Barfell: Roberta A. Heckes; BiC; Resp. Br.; Reply Br.; App. Supp. Br.; Resp. Supp. Br.
Sentencing – Guidelines, General Purpose
¶7 While Barfell is correct that he “has a due process right ‘to be sentenced on the basis of true and correct information’ pertaining to ‘the offense and the circumstances of its commission … and the defendant’s personality,
Johnson v. U.S., USSC No. 08-6925
Armed Career Criminal Act
State conviction for battery, which requires only intentional physical contact no matter how slight, doesn’t qualify as “violent” under federal Armed Career Criminal Act, 18 U. S. C. §922(g)(1).
There appears to be no Wisconsin equivalent to the ACCA, which severely limits the utility of this case for state practice.
State v. Shannon W. Statz, 2009AP2265-CR, District IV, 2/25/2010
court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply
Traffic Stop – Reasonable Suspicion – § 346.072(1)
“We are satisfied that a reasonable officer could reasonably suspect that, by driving 28 to 30 miles per hour in a 25-mile-per-hour zone within 2 to 3 feet of the squad cars, Statz did not slow down, maintain a safe speed for traffic conditions,
State v. Alexander Marinez, 2010 WI App 34
court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.
Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:
Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,
Calumet County DHS v. Amber S. L., 2009AP3090, District II, 2/24/2010
court of appeals decision (1-judge; not for publication)
TPR – Closing Argument
County’s closing argument exhorting jury to consider that gal “represents the child and what’s best for the child” merely described “how the parties and their attorneys were aligned,” not that jury “should consider the ‘best interest’ of the child.”
TPR – Evidence
Evidence that Amber voluntarily terminated her rights to her firstborn child was probative of “the fact to be proven,
State v. Wilvina S., 2009AP1764, District II, 2/24/2010
court of appeals decision (1-judge; not for publication); Lora B. Cerone, SPD, Madison Appellate
TPR – Stipulation, Grounds
Signed stipulation to grounds, which effectively withdrew jury demand, upheld where trial court addressed parent in court and on record, and she “acknowledged her understanding clearly, repeatedly, and without equivocation.”
TPR – New Evidence
Postdisposition change in placement affect “advisability of the original adjudication” and therefore didn’t amount to “new evidence”
State v. Luis G., 2009AP1313-CR, District I, 2/17/2010
TPR – Forfeiture of Jury Trial
Failure to appear at initial hearing and make timely request forfeited right to jury trial; trial court’s ultimate refusal to enter default judgment “did not return the case to the initial hearing stage or reinstate Luis’s right to a jury trial”; nor did filing of amended petition reset this clock; finally, the court suggests that denial of right to jury trial was,
State v. Paul L. Watson, 2009AP1136-CR, District I, 2/23/2010
court of appeals decision (3-judge; not recommended for publication); Randall E. Paulson, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply
Pre-Sentence Plea Withdrawal
Adverse findings of fact doom pre-sentencing plea withdrawal premised on claims: attorney rushed Watson into pleading out, but trial court accepted attorney’s testimony to contrary; and Watson hadn’t seen victims’ videotaped statements, but Watson knew through police reports and discussions with attorney nature of their allegations.
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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.