On Point

court of appeals decision (not recommended for publication)

Arrest – Probable Cause
Arrest based on probable cause where drug informant identified photo of Laster as person he just bought drugs from.

court of appeals decision (1-judge; not for publication)

Delinquency – Venue
Delinquency venue is where the juvenile resides, § 938.185(1)(a), which is where the legal custodian establishes the child’s domicile; legal custodian of Jennifer Z. was Taylor Co. Human Services, therefore she resided in Taylor Co.

Ineffective Assistance of Counsel – Eliciting Incriminating Testimony
Counsel’s eliciting incriminating testimony, without tactical reason, leading to added count was ineffective.

State v. Jeffrey A.W., 2010 WI App 29; for Jeffrey A.W.: Hans P. Koesser

Adequacy of Counsel Investigation

Counsel’s attempt to demonstrate the absence of herpes in the defendant—an issue central to this sexual assault prosecution—was, although a failure, not the product of deficient performance.

¶12  There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.

court of appeals decision; for Garcia: Paul M. Ruby

Defendant’s Right to Testify – After-the-Fact Evidentiary Hearing on Required Colloquy
Although a colloquy is required by State v. Weed, 2003 WI 85 before the defense rests without testimony from the defendant, failure to conduct the colloquy doesn’t automatically result in new trial but, rather, supports postconviction evidentiary hearing procedure.

¶14  The supreme court in Weed mandated a simple colloquy for courts to employ when a defendant chooses not to testify at trial. 

court of appeals decision (1-judge; not for publication)

Vehicle Stop – Rear Plate State Name Obscured
Stop proper where rear plate bracket obscured name of state, even though “America’s Dairyland” visible at bottom of plate;  pretextual nature of stop irrelevant.

court of appeals decision (1-judge; not for publication)

TPR – Competency of Court, Uniform Child Custody Jurisdiction and Enforcement Act
Custody order in Iowa didn’t strip competency of Wisconsin court to act on TPR petition, where child now lived in Wisconsin, and matter held in abeyance until Iowa declined jurisdiction; “Wis. Stat. § 822.23 does not require a court to dismiss a custody action as soon as it discovers that another state had entered a custody order for the child when the action was commenced in this state. 

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

Vehicle Stop – Reasonable Suspicion – Anonymous Tip Insufficient
Anonymous tip “from an unknown informant calling from an unknown location” that driver in restaurant parking lot pouring out beer insufficiently reliable to support subsequent stop, where no traffic violations or erratic driving observed.

court of appeals decision; for Fortun: Todd E. Schroeder

Forgery, § 943.38(1) – Altered Prescription (Increasing Number of Pills)
Altering the number of pills on a prescription and presenting the altered document to a pharmacist comes within the forgery statute, § 943.38(1).

Memorandum Decision (per Roggensack, J.)

Disqualification, § 757.19(2)(e)

Justice Roggensack isn’t disqualified under § 757.19(2)(e) from participating in Henley’s pending appeal, even though as a court of appeals judge she decided the separate appeal of Henley’s jointly tried codefendant Adams.

¶23  …  I conclude that disqualification/recusal is directed under Wis. Stat. § 757.19(2)(e) only when the same defendant in the action or proceeding on which an appellate judge has already participated as a judge is once again before a court on which the same judge is serving.

State v. Leneral Louis Williams, 2010 WI App 39; for Williams: Richard L. Zaffiro; Resp Br.; Reply Br.

Seizure – Some Restraint Necessary

¶16      The Fourth Amendment is not implicated until there has been a seizure. The Court in Terry described a seizure as “whenever a police officer accosts an individual and restrains his [or her] freedom to walk away.” Id.