On Point

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: The State’s silent acquiescence to judicial action (sua sponte withdrawal of a guilty plea) didn’t work judicial estoppel bar to mounting subsequent challenge to that ruling, ¶14.

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

Issue/Holding:

¶6       Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction, Thexton’s attorney objected to the circuit court that he could not adequately respond to it because he did not have access to the prior PSI.

State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR filed 11/1/07; on remand from supreme court, and affirming, 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶12      Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt,

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding: Failure to object to the wording of a limiting instruction (limiting jury’s use of certain evidence to impeachment rather than substantive evidence of guilt) waived the right to challenge its efficacy, ¶¶34-36.

The court possesses discretionary authority to review and reverse in the interest of justice but “Cockrell does not contend that the real controversy was not tried because of the challenged jury instruction,” ¶36 n.

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

Issue/Holding: Review of a published court of appeals’ decision by the supreme court leaves intact any portion of the opinion not reversed, ¶13 n. 4, citing State v. Jones, 2002 WI App 196, ¶40.

Jones itself holds:

We agree with the State that this exact claim has already been rejected in State v.

State v. Dwight M. Sanders, 2007 WI App 174, affirmed, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding:

¶26   The State argues that our supreme court’s decision in Hughes validates the officers’ hot pursuit entry in this case. In Hughes, the court held that the crime of possession of marijuana was serious enough to justify the warrantless entry of an apartment under the exigent circumstance of preventing the destruction of evidence. 

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,