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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.
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Defenses – “Statutory Double Jeopardy” – Drug Offenses, § 961.45 – “Same Conduct” Test
State v. Julio C. Bautista, 2009 WI App 100, PFR filed 7/16/09 For Bautista: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Section 961.45 bars successive drug prosecutions by dual sovereignties premised on the “same act” (or “conduct”), State v. Colleen E. Hansen, 2001 WI 53. Although broader than the Blockburger “elements-only” test, this “same-conduct” test does not bar […]
Defense of Self, § 939.48(1) – Pretrial Disclosure by Defense of “McMorris” Acts of Prior Violence by Victim
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118 For McClaren: Michael C. Witt Issue/Holding: A trial court has inherent and statutory authority (§ 906.11) to order that a defendant provide a pretrial summary of the specific “McMorris” evidence (violent acts of the alleged victim the defendant knew about, as relevant […]
Forfeited Issue: Deferred Prosecution Agreement Argument
State v. Chase E. Kaczmarski, 2009 WI App 117 For Kaczmarski: Harold L. Harlowe, David M. Gorwitz Issue/Holding: ¶7 Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. [3] See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. […]
Forfeited Issue – Failure of Court Reporter to Take Down Tape as Played to Jury
State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09 For Huff: Jeffrey W. Jensen Issue/Holding: ¶14 As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. […]
Instructions — Omitted Element — “Fact-Law Distinction”
See summary of State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, here. Omitted Issues – Stalking: Submission to Jury of Prior Conviction for “Violence” Despite Stipulation State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42 For Warbelton: Paul G. Lazotte, SPD, Madison Appellate Issue/Holding: On a trial for stalking, […]
Particular Issues – Counsel – Ineffective Assistance – Deficient Performance: Lack of Familiarity with Vienna Convention on Consular Relations
Johnbull K. Osagiede v. USA, 7th Cir No. 07-1131, 9/9/08 Issue/Holding: Counsel’s ignorance of VCCR Art. 36 rights available to foreign national client was deficient: Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have […]
Closing Argument – Reference to Defendant’s Failure to Testify
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208 For Doss: Robert R. Henak Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify: ¶81 … [F]or a prosecutor’s comment to constitute an improper reference to a defendant’s […]
Functional Equivalent of Custodial “Interrogation”
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256 For Hambly: Martha K. Askins, SPD, Madison Appellate Issue: Whether, following his in-custody invocation of right to counsel, Hambly’s subsequent statements that he didn’t know what was going on (eliciting the officer’s response that he’d sold cocaine to an informant) and wanted to talk to […]
Assertion of Right to Counsel – Not Offense-Specific
State v. Willie B. Cole, 2008 WI App 178 For Cole: Scott A. Szabrowicz Issue/Holding: ¶25 … If a suspect requests counsel at any time during the interview, he or she is not subject to further questioning until a lawyer has been made available or the suspect himself or herself reinitiates conversation. … ¶26 The Fifth […]
Miranda Waiver – Voluntariness
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256 For Hambly: Martha K. Askins, SPD, Madison Appellate Issue/Holding: ¶93 The defendant summarizes his argument that he did not voluntarily, knowingly, and intelligently waive his right to counsel, stating that at the time of his arrest, he was hungry, alone in the back seat […]
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