On Point

Manitowoc County HSD v. Allen J., 2008 WI App 137

Issue/Holding:

¶1 Allen J. appeals from orders terminating his parental rights to his children, Brandon [1] and Stephanie J. He argues that he was deprived of his right to a jury trial because the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Allen’s counsel had stipulated that the element was satisfied,

Oneida Co. DSS v. Therese S., 2008 WI App 159

Grounds

Issue/Holding: Informing the parent of potential “dispositions in a general sense” is not enough to satisfy § 48.422(7)(a):

¶16      Thus, at the very least, a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination.

Donald Calloway v. Montgomery, 512 F. 3d 940, No. 07-1148, 1/14/08

Issue/Holding: Where the Supreme Court has expressly declined to rule on the issue (or on one in a very similar) context) to the issue on habeas review, there is no clearly established precedent within the meaning of AEDPA.

Andrew Lockhart v. Chandler, 446 F.3d 721 (7th Cir 2006) (challenge to lack of knowledge of mandatory additional term of supervised release not cognizable) followed.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: “Under the above case law, it is clear that, if Cole did invoke his Fifth Amendment/Miranda right to counsel when he was arrested on the battery charge, then the statement he gave Officer Riley while still in custody is inadmissible even if Cole’s waiver of Miranda rights in that interview was otherwise valid,”

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding:

¶38      The parties have not provided, and we have not discovered, any case that addresses the burden of proof in a factual context similar to this—where the defendant asserts he previously invoked his right to counsel as a basis for invalidating a later waiver. [9] However, we are persuaded that placing the burden on the State to show a prior waiver of this right,

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: The State bears the burden of proof, by preponderance of evidence, of a valid waiver of Miranda rights, ¶27.

¶35      As we have stated above, it is the State’s burden to prove by a preponderance of the evidence that the defendant validly waived his Miranda rights and that the statement was voluntary. 

State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup

Issue/Holding:

¶38      In the case at hand, we conclude, as did the circuit court, that the defendant’s statement was voluntary. The record contains no evidence that would give rise to any concerns regarding his personal characteristics. Davis, at the time this occurred, was 43 years old. While the defendant’s brief indicates that Davis only possesses a middle school level education,

State v. Danny G. Harrell, 2008 WI App 37
For Harrell: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Expert opinion that Harrell is sexually violent was derived from his compelled, incriminatory statement and therefore also inadmissible, ¶¶14-35.

The court essentially tracks the discussion in Mark, which therefore won’t be repeated, and applies it to the particular facts. The court also reserves authority to remand for a “ Kastigar” hearing,

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding1:

¶20      When an individual has given an involuntary statement, a subsequent statement is also considered involuntary unless it can be “separated from the circumstances surrounding” the earlier statement by a “break in the stream of events,” between the first statement to the second,

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding1:

¶28      In Kastigar, the … Court stated that, once a defendant demonstrates that he or she has testified under a grant of immunity for matters related to the prosecution,