Explore in-depth analysis

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.

Due Process – Defendant’s Right to Testify – Exercise of Right: Knowing, Voluntary Waiver of Right Not to Testify

State v. Mark A. Jaramillo, 2009 WI App 39
For Jaramillo: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether the trial court must conduct a colloquy before a defendant testifies to determine whether waiver of the right not to testify is knowing and voluntary.

Holding:

¶16      We have previously noted that we do “not possess any supervisory authority which would permit [us] to promulgate rules of criminal practice and procedure.” State v.

Read full article >

Due Process – Notice of Charge – Sufficient to Allege Elements, Specific Acts Unnecessary

State v. Janet A. Conner, 2009 WI App 143, PFR filed 9/28/09
For Conner: J. Steven House

Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”

State v.

Read full article >

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 state prosecution for conspiracy to deliver marijuana following federal conviction for delivering cocaine.

Read full article >

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 to self-defense) he or she wants to introduce at trial:

¶26      Given the limited nature of the evidence covered in this order——that is,

Read full article >

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. App. 1987).We generally do not consider arguments not raised in the circuit court.

Read full article >

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. 2d ___,

Read full article >

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,

Read full article >

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 acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” Julian v.

Read full article >

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 failure to testify,

Read full article >

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 find out what his options were amounted to a initiation of contact authorizing interrogation within the Edwards rule.

Read full article >

On Point is sponsored by Wisconsin State Public Defenders. All content is subject to public disclosure. Comments are moderated. If you have questions about this blog, please email [email protected].

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.