On Point

State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger

Issue/Holding: Instructional error due to mandatory conclusive presumption wasn’t harmless:

¶28      As we have explained, the trial error consisted of an instruction that the jury must accept as true the elemental facts that Schultz acted inconsistently with the duties of her office and intended to obtain a dishonest disadvantage if the jury found that Schultz used state resources to promote a candidate or to raise money for political campaign purposes. 

State v. Twaun L. Gee, 2007 WI App 32
For Gee: Amelia L. Bizzaro

Issue/Holding: The holding of State v. Brandon E. Jones, 2005 WI App 259, ¶13, that the reconfinement judge need not review the original sentencing transcript was overruled by State v. John C. Brown, 2006 WI 131, ¶38:

¶14   In Brown,

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: The rule of State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997) (conflict of interest where PSI author married to defendant’s prosecutor) does not extend to situation where PSI author is married to another probation agent and both are jointly supervising the defendant:

¶5       We do not believe that the same inherent bias exists in the relationship between two supervising probation agents. 

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: Thexton wasn’t entitled to Miranda warnings “at the time the PSI was being prepared”:

¶8        Thexton also claims that Streekstra violated his Fifth Amendment rights when he interviewed him during the investigation.  Thexton claims that Streekstra used the prior PSI as a basis for questioning him,

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: The agent’s use of a prior PSI during the interview of defendant for the current case did not trigger any additional right to counsel:

¶10      Thexton further argues that his right to counsel was violated because he was unable to consult with his attorney regarding the use of the prior PSI during the interview.

City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU

Issue/Holding: 

¶53      We conclude that a circuit court may take into account cost when determining place of confinement under Wis. Stat. § 252.07(9). A court must first determine that the place of confinement is a facility where proper care and treatment will be provided,

State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Evidence that SVP respondent would be under DOC supervision if not committed under ch. 980 properly excluded as irrelevant, ¶¶8-14 (“the fact of supervision is irrelevant to whether Budd is a sexually violent person under § 980.01(7),” ¶14).The court in essence follows its statement in State v. Charles W.

State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the trial court erred in admitting evidence as to the “screening process” for referring SVP cases, which had the effect of informing the jury that fewer than 5% of eligible sex offenders are selected for commitment proceedings.

Holding:

¶16   We need not conclude, as Budd urges,

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: “(T)he phrase ‘more likely than not’ in the statute means what it says: that an event is more likely to occur than not to occur; that is, has a greater than 50% chance of happening. Thus, in order to find Smalley a sexually violent person,

State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate

Issue/Holding:

¶18      Smalley notes that the actuarial instruments fail to take an individual’s mental disorder into account, and that they therefore predict dangerousness in general, rather than dangerousness due to mental disorder. He argues that because a jury in a Wis. Stat. ch.