On Point

State v. Louis H. LaCount, 2007 WI App 116, affirmed, 2008 WI 59, ¶20
For LaCount: T. Christopher Kelly

Issue/Holding:

¶19      Under Wis. Stat. § 907.04, “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” See, e.g.,

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

Issue/Holding: Trial courts possess inherent authority to reconsider any non-final ruling prior to entry of final order or judgment, ¶13, citing State v. Bobby R. Williams, 2005 WI App 221, ¶17, 287 Wis. 2d 748, 706 N.W.2d 355.

The trial court reconsidered its own prior sua sponte vacatur of a guilty plea.

State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11
For Williams: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the trial court’s express policy of never accepting an “Alford” plea worked an erroneous refusal to accept such a plea.

Holding:

¶8  Even if we were to determine that the trial court erred in rejecting the tendered Alford plea,

State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters

Issue/Holding:

¶20 Although finding that Natisha Watkins was unavailable as a witness because it permitted her to assert her Fifth Amendment right, the trial court excluded what Natisha Watkins told Papka because it determined that her statement that Carlos Williams and not Jackson handled the gun was not against her penal interest.

State v. Walter William McCoy, 2007 WI App 15
For McCoy: Andrea Taylor Cornwall

Issue/Holding:

¶18   … We start by acknowledging that the chain of evidence in this case is not perfect. There are substantial time gaps as pointed out by McCoy. Nonetheless, the chain of custody evidence was sufficient to support the trial court’s conclusion that it was admissible. The standard for the admission of exhibits into evidence is that there must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed.”  Moore,

State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters

Issue/Holding: On a prosecution for felon in possession of a firearm, based on the allegation that the defendant “handled” a gun in a gun store, evidence of a 3rd-party’s prior felony conviction was admissible, where: the identity of the person who touched the gun was disputed; and, the 3rd-party acknowledged in an extrajudicial statement,

State v. Thomas A. Nommensen, 2007 WI App 224
For Nommensen: Anthony L. O’Malley

Issue/Holding: Although charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they :

¶8        Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id.

State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers

Issue/Holding:

¶15      … Even under the “more likely than not” standard, there must be a strong nexus between the person’s mental disorder and that person’s level of dangerousness. Under this standard, the likelihood that the person will engage in an act of sexual violence is more than 50%. 

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

Issue/Holding: State SVP expert’s unobjected-to misstatement of test for measuring reoffense risk (“more likely than not” means “any chance greater than zero” rather then more than 50%) didn’t support reversal in the interest of justice:

¶10      First, Dr. Jurek’s statement was an isolated occurrence in a three-day trial.

State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55

 Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order.” (¶2)

Holding:

¶41 We do not accept the State’s position for three reasons.