On Point

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

Issue/Holding:

¶11      Inquiry into a witness’s bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore,

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue/Holding1: Evidence of the driver’s marijuana use just before the accident resulting in the charged homicide by negligent use of vehicle was relevant and admissible:

¶48      Although the toxicology expert could not tie the level of THC detected in Schutte’s blood to a specific level of impairment,

State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman

Issue/Holding:

¶39 Finally, we determine that the circuit court did not erroneously exercise its discretion in refusing to admit testimony regarding Shomberg’s offer to take a polygraph examination. … However, such an offer is only “relevant to the state of mind of a person making the offer as ‘long as the person making the offer believes that the test or analysis is possible,

State v. Rachel W. Kelty, 2006 WI 101, reversing unpublished decision
For Kelty: Michael J. Fairchild

Issue/Holding: The defendant’s striking the victim “twice with two separate objects, each time committing herself to strike the baby, each blow separate, distinct, not identical in fact,” supports two separate charges of first-degree reckless injury, § 940.23(1)(a), ¶¶49-50.

State v. Keith S. Krause, 2006 WI App 43
For Krause: Roger G. Merry

Issue/Holding: Because collateral attack on a prior conviction used as a sentencing enhancer is limited to denial of counsel, and because the right to counsel does not attach to a civil proceeding, a refusal revocation is not subject to collateral attack on its use as an OWI enhancer:

¶12      In an enhanced-penalty situation,

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.

Holding:

¶56      There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.¶57      One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.  

State v. Jonathan Bell, 2006 WI App 30
For Bell: Leonard D. Kachinsky

Issue: Whether intervention of the local prosecutor to obtain a second DOC evaluation, which resulted in a referral for SVP commitment after the first DOC evaluation determined insufficient likelihood of reoffending, violated ch. 980 or due process.

Holding:

¶11      Our supreme court defined the scope of the district attorney’s authority in Byers.

Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals, 2006 WI 86

Issue/Holding:

¶14      By granting deference to agency interpretations, the court has not abdicated, and should not abdicate, its authority and responsibility to interpret statutes and decide questions of law. Some cases, however, mistakenly fail to state, before launching into a discussion of the levels of deference, that the interpretation and application of a statute is a question of law to be determined by a court. 

State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:

¶12 We conclude,

State v. Thomas A. Mikulance, 2006 WI App 69
Pro se

Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1,