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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. Norbert Aaron Mathis, 2008AP2616-CRNM, Certification

Order for DNA sample and surcharge

Click here for certification order

For Mathis: Donna Odrzywolski

We [District IV] certify this appeal to the Wisconsin Supreme Court pursuant to Wis. Stat. Rule 809.61 (2007-08), to resolve a conflict among the districts of the court of appeals that has arisen as a result of our decision in State v. Cherry, 2008 WI App 80, ¶¶8-9, 312 Wis.

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State v. James D. Miller, 2009 WI App 111

Waiver of Escalona argument; claim of self-defense where crime includes “utter disregard of life” element

Click here for court of appeals decision, PFR filed 8/3/09

(opinion originally issued 4/23, withdrawn 5/12, reissued 5/21, withdrawn 6/12, reissued 7/2. Groundhog Day? Not quite: the withdrawn opinions found that trial counsel was ineffective for not seeking a lesser included instruction to reckless injury, but the new opinion rejects that conclusion)

Pro se

Issue/Holding: State failure to argue,

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State v. James D. Lammers, 2009 WI App 136

Plain error rule; DA’s “vouching” during closing argument

Click here for court of appeals decision

Defense counsel: Amelia L. Bizzaro

Issue/Holding:  

¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App.

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State v. Ross M. Brandt, 2009 WI App 115

Hit and run causing injury is felony

Click here for court of appeals decision 

Defense counsel: John M. Yackel

 Issue/Holding: Although it carries a maximum penalty of 9 months’ imprisonment, hit-and-run causing injury less than serious bodily harm, §§ 346.67(1) and 346.74(5)(b), is a felony. 

Analysis:  Obviously, this result is going to make life more difficult for hit-run representation, for the obvious reason: it’s one thing to advise your client to plead out to a misdemeanor,

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State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09

Warrantless entry of residence; protective sweep

Click here for court of appeals decision 

Defense counsel: Robert E. Haney

 Issue/Holding: Warrantless entry of residence is supported when the State demonstrates both probable cause and exigent circumstances, ¶7. Exigent circumstances include: (1) hot pursuit of suspect; (2) threat to someone’s safety; (3) risk of evidence destruction; and (4) likelihood suspect will flee, ¶9.

Analysis:  The court goes on to collapse the 2nd and 3rd categories of exigencies,

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Robert Zellner v. Herrick, et al., 2009 WI 80, on certification

Scope of review on certification; open records appeals

Click here for supreme court decision      Click here for certification

Issue/Holding:  ¶3        …  In this court’s standard order accepting the certification, we stated that “the appeal is accepted for consideration of all issues raised before the court of appeals.” See State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) (“When this court grants direct review upon certification,

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State v. Benjamin D. Tarrant, 2009 WI App 121

Guilty plea waiver; detainers

Click here for court of appeals decision 

Defense counsel: Susan E. Alesia, SPD, Madison Appellate

 Issue/Holding:   

¶6        Waiver. Before addressing the merits, the State argues that Tarrant’s no contest plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437.

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Miranda – Waiver – Voluntariness – Police Deception – “Incommunicado” Detention, etc.

State v. Jennifer L. Ward, 2009 WI 60, affirming unpublished opinion
For Ward: T. Christopher Kelly

Issue/Holding: Taken individually and collectively, Ward’s 3 statements were voluntary, weighing personal characteristics against police conduct.

Personal characteristics, ¶23. Ward was: “relatively sophisticated and intelligent”; 35 years old; a high school graduate; prior conviction; the daughter of a police chief. Her “unprompted understanding of her rights” indicated lack of vulnerability to police questioning.

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Jury – Selection – Bias / Disqualification – Exercise of Discretion

State v. Mark H. Tody, 2009 WI 31, reversing unpublished opinion
For Tody: Byron C. Lichstein, UW Law School

Issue/Holding:

¶32      … The correct principle of law that should have guided the circuit court judge is that a circuit court judge should err on the side of dismissing a challenged juror when the challenged juror’s presence may create bias or an appearance of bias. 

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Noncustodial Administration of Rights: Obviates Need for Custodial Re-Administration

State v. Marchand Grady, 2009 WI 47, affirming summary order
For Grady: Carl W. Chessir

Issue: Whether administration of Miranda rights in a noncustodial setting obviated the need for re-administration of rights when the interview became custodial about 2 and one-half hours later.

Holding:

¶15      Grady advances a creative, but not heretofore unheard of argument. He asks us to adopt a bright-line rule requiring the administration of Miranda warnings after a person is placed in official custody,

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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.