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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.

Exigency – Destruction of Evidence (Drugs) – Entry of Residence – Following Controlled Buy

State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes

Issue/Holding: Warrantless entry of residence, following controlled buy within it, was justified by the threat of destruction of evidence, given that, “after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop,” ¶11. State v.

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Exigency – “Protective Sweep” as Incident of Destruction of Evidence

State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney

Issue/Holding: Police investigating complaint of drug dealing were entitled to enter apartment and conduct “protective sweep” when they saw, through the open front door, clear evidence of drugs:

¶13      The officers who presented themselves at Lee’s front door were investigating a complaint of drug activity at Lee’s address.

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Certiorari – Inmate Complaint – “Misdirected” Writ, Lack of Jurisdiction

State ex rel. David C. Myers v. Smith, 2009 WI App 49

Pro se

Issue/Holding: Writ of certiorari “misdirected” to wrong respondent (in this instance, review of inmate complaint, improperly naming as respondent institution warden rather than DOC Secretary or designee) must be dismissed:

¶10      We begin by observing that certiorari “is available only for the purpose of reviewing a final determination.” Id.

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Certiorari – Inmate Complaint – Limitation on Discovery

State ex rel. David C. Myers v. Smith, 2009 WI App 49

Pro se

Issue/Holding: Inmate may not utilize discovery to bypass security-based restrictions on access to banned material such as pornography:

¶16      Inmates must not be allowed to evade security restrictions by simply filing suit or petitioning for writ of certiorari and obtaining prohibited materials through discovery. Due process does not mean that a prisoner has an absolute right to everything relevant to his or her case.

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Attempted Theft from Person, § 943.20(3)(e) – Sufficiency of Evidence

State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09
For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried to grab and take the fax machine:

¶10   In the case at bar,

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Double Jeopardy – Multiplicity: Bail Jumping – Single Bond, Same Condition but Different Cases

State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09
For Eaglefeathers: Patricia A. Fitzgerald

Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges:

¶8        The parties do not dispute that the offenses charged against Eaglefeathers are identical in law;

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Obstructing, § 946.41 – “Incomplete” Instruction, “Lawful Authority” – Harmless Error

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Where it was clear not only that Ferguson obstructed the police outsideher apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was harmless:

¶43      The jury instruction here was a correct statement of the law for police actions outside of Ferguson’s home.

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Obstructing, § 946.41 – “Lawful Authority” – Jury Instruction, Generally

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶31      Because “lawful authority” is an element of obstruction under Wis. Stat. § 946.41(1), if the jury was not properly instructed on the meaning of “lawful authority,” given the facts presented to the jury, the circuit court erred.See Harvey,

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Disorderly Conduct, § 947.01 – Conviction as “Crime of Domestic Violence” Disqualifying Gun Possession

Joseph E. Koll, Jr v. Dept of Justice, 2009 WI App 74, PFR filed 4/29/09
For Koll: Alexander L. Ullenberg

Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.

Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C.

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Sexual Assault of Child, § 948.02 – Unanimity – Separate Counts, Failure to Tie Particular Act to Particular Count

State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: Waived objection to jury instruction “which failed to tie a particular act of sexual contact to a particular count” on a 2-count information of sexual assault of a child, not prejudicial (State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct.

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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.