On Point

State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it,

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Mary L. Woehrer

Issue/Holding: Bembenek breached her plea agreement (which contained a no-attack or appeal clause) by filing a motion for DNA testing to establish her innocence; the remedy for this breach is dismissal of her appeal of the denial of the motion:

¶17      By filing motions to reexamine the evidence in 2002,

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding: Rejecting the JI Committee definition of “cunnilingus,” the court “ conclude(s) that the statutory scheme of the sexual assault law does not require proof of ‘stimulation of the clitoris or vulva,’” ¶¶11-21.

¶21      The complaint and the undisputed evidence presented at the preliminary hearing demonstrated that Harvey performed an act of nonconsensual cunnilingus by placing his mouth on the victim’s genital area.

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding: Plea bargain, which permitted State to comment on facts but not to make specific sentencing recommendation was not violated by State’s presentation of victim and others who themselves asked for maximum penalty:

¶40      We first disagree that the State breached the plea agreement by going beyond factual argument with its comments about evidence it would have introduced had there been a trial.

State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding:

¶6        Ravesteijn, a citizen of the Netherlands, argues that the trial court was obligated to consider whether he needed an interpreter and to obtain his personal waiver of the right to an interpreter. See State v. Neave, 117 Wis. 2d 359, 375, 344 N.W.2d 181 (1984), overruled on other grounds by State v.

State v. Anna Annina, 2006 WI App 202
For Annina: Robert R. Henak

Issue/Holding:

¶9        Annina seeks to withdraw her Alford plea on the grounds that a manifest injustice has occurred. “Withdrawal of a plea following sentencing is not allowed unless it is necessary to correct a manifest injustice.”  State v. Smith, 202 Wis.  2d 21, 25, 549 N.W.2d 232 (1996).

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶39      Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis.

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶35      … Rule 906.08(2) permits the cross-examination of a witness about “extrinsic” matters, “if probative of truthfulness or untruthfulness.” Certainly, lying on direct-examination, and repeating the lie on cross-examination, is “probative of truthfulness.” Moreover, Rodriguez opened the door, and the prosecutor was fully justified in calling him on it. 

State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau

Issue/Holding: Defense cross-examination of a principal State’s witness was impermissibly curtailed when the trial court abruptly ended inquiry into whether the witness had threatened to cause the defendant (her ex-husband) “trouble” following his remarriage, where:

• The witness testified only with the aid of a translator and had obvious difficulty answering questions (“a witness’s comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely.

State v. Walter T. Missouri, 2006 WI App 74
For Missouri: Jeffrey W. Jensen

Issue: Whether the defense should have been allowed to cross-examine the arresting officer about an instance of misconduct between the officer and a third party which was assertedly very similar to the defense theory that the officer mistreated the defendant and planted evidence on him.

Holding:

¶20      Moreover, WIS.