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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.
Miranda – Waiver – Ambiguous Assertion of Right to Counsel
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding: Defendant’s request to call parents so they could call attorney for him was an insufficiently unequivocal assertion of his right to counsel:
¶36 We agree with the trial court’s conclusion that even if we assume that the defendant made requests to call his parents so that they could call an attorney for him,
Miranda – Waiver – Re-Administration of Rights Unnecessary
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding: Where Miranda rights were properly given at the outset of the “first segment” of interrogation, re-administration of rights wasn’t necessary for “second segment,” several hours later, ¶¶24-28.
Statements – Voluntariness – Police Deception/Promises – Informing of Potential Benefits of Cooperation not Improper
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding:
¶29 Berggren also argues that his statements were induced by promises of probation and treatment. This amounts to an argument that his statements were not voluntarily given. He contends that the detective questioning him conveyed: “the belief that simple possession of child pornography photos would result in a probation disposition”;
Briefs – Appendix: Importance of, and Sanction for Falsely Certifying Compliance
Werner v. Hendry, 2009 WI App 103, PFR filed 7/17/09
Issue/Holding:
¶11 As a final matter, we observe that the appellant’s appendix fails to include the trial court’s reasoning. It is essential that the appendix include the record items truly relevant and essential to understanding the issues raised, particularly the trial court’s oral ruling. State v. Bons, 2007 WI App 124,
Notice of Appeal – Contents – Inconsequential Error
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: ¶1 n. 1:
Haywood’s notice of appeal mistakenly asserts that he also appeals “from … the postconviction motion dated December 2, 2008.” First, Haywood’s appeal is from the circuit court’s order denying his motion, not from the motion. Second, the circuit court’s order is dated December 1,
Notice of Appeal – Contents: Failure to Identify Appealable Document; Notice of Intent as Substitute
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: ¶ 2 n. 2:
The failure of the notice of appeal to correctly identify the final appealable document is not fatal to appellate jurisdiction. See Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211,
Notice of Appeal – Contents: Chs. 54 (Guardianship) and 55 (Protective Placement) = 3-Judge Panel – Default for Combined 1-Judge and 3-Judge Panel Appeal = 3-Judge
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: Although a ch. 54 guardianship appeal is decided by a 3-judge and ch. 55 protective placement by a 1-judge panel, when the 2 were commenced and decided under a single trial court case number, the appeal will be decided by a 3-judge panel:
¶5 The plain language of Wis.
No-Merit Report – Counsel Appointed by Circuit Court Rather Than SPD
State v. Carl Davis Brown, Jr., 2009 WI App 169
For Brown: Paul G. Bonneson
For SPD: Colleen D. Ball, Milwaukee Appellate
Issue/Holding:
¶7 The statutes referenced in Wis. Stat. Rule 809.32(1)(a), relate to the appointment of counsel by the state public defender. Thus, pursuant to Rule 809.32(1)(a), an attorney appointed by the state public defender may file a no-merit report using the statutory scheme set out in Rule 809.32.
Postconviction Motions – § 974.06, Supports Sufficiency-of-Evidence Review
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: Because sufficiency of evidence to sustain the conviction is a matter of constitutional dimension, it may be raised via § 974.06 motion, ¶¶25-30.The court’s discussion also indicates, at least implicitly, that the State v. Obea S. Hayes, 2004 WI 80 holding (sufficiency claim not waived on direct appeal even though not raised in trial court) applies in the context of 974.06 review.
Name Change, Judgment of Conviction – Based on Claim of Common Law Right to Change Name
State v. Jermaine Smith, 2009 WI App 104
Pro se
Issue/Holding:
¶1 Jermaine Smith appeals from an order denying his “motion to amend his Judgment of Conviction to reflect his common law spiritual name,” which he states is “Marcolo Von Capoeira.” Because Smith’s motion fails to provide any support for his assertion that he used the name Marcolo Von Capoeira for ten years (including four years prior to the time his crime was committed) and because he did not raise this issue during his criminal case,
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