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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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Hearsay – Residual Exception, § 908.045(6)
State v. Derek Anderson, 2005 WI 54, on certification For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate Issue/Holding: ¶59 We agree with the State that while Krnak’s statement to Ellifson does not technically qualify as an excited utterance, or statement of recent perception due to timing problems, it does […]
Hearsay – Statement of Recent Perception, § 908.045(2)
State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111 For Manuel: Steven D. Phillips, SPD, Madison Appellate Issue/Holding1 [general principles]: ¶29 … As this court summarized in Weed, for a statement to fit recent perception exception, it must pass the following three criteria: (1) the statement was not made in response […]
Prohibition — John Doe Proceeding
State ex rel. Individual v. Davis, 2005 WI 70, on certification For Subpoenaed Individual: Stephen P. Hurley, Marcus J. Berghahn, Hal Harlowe Issue/Holding: ¶15 A writ of prohibition is an extraordinary remedy that normally will not issue except in the absence of other adequate remedies. [6]As a remedy, writs of prohibition are often used in […]
Waiver of Issue: Jury Polling: Response Indicating Non-Unanimous Verdict
State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals For Raye: Brian C. Hough Issue: Whether the defendant failed to lodge contemporaneous objection (which would have waived appellate challenge) to a non-unanimous verdict revealed during jury polling when a juror indicated he did not in fact subscribe to the […]
Prejudicial Error – Exclusion of Expert TPR Opinion Testimony
Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children. Holding: ¶71 The State’s interest in terminating parental rights promptly […]
TPR – Substantive Due Process
Dane Co. DHS v. P.P., 2005 WI 32, affirming unpublished decision Issue: Whether § 48.424(4) (2001-02) on its face violates substantive due process, in failing to require an individualized determination of unfitness as a precondition for termination of parental rights. Holding: A parent has a fundamental liberty interest at stake in parenting his or her […]
Mandamus — Review of Denial of Judicial Substitution
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85 For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial Issue/Holding: ¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, […]
Federal Habeas: Procedure — Appellate — Standard of Review — State Court Failure to Adjudicate Merits, Effect of
Larry W. Myartt v. Frank, 7th Cir No 04-2115, 1/21/05Issue/Holding: … AEDPA standards apply only to claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In the instant case, the Wisconsin Court of Appeals did not address Myartt’s ineffective assistance claim, which is unsurprising because Myartt’s pro se filing […]
Ambiguous Assertion of Rights — Silence
State v. Richard Allen Hassel, 2005 WI App 80 For Hassel: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding1: Hassel’s custodial statement, “I don’t know if I should talk to you” was ambiguous and therefore triggered no duty to terminate the interrogation, ¶¶16-19. The court of appeals purported to follow Davis v. United States, 512 U.S. 452 (1994), […]
Miranda Waiver – Inaccurate Advice, from Counsel
State v. Xavier J. Rockette, 2005 WI App 205 For Rockette: Timothy A. Provis Issue/Holding: ¶24 We conclude that Rockette did not waive his Miranda rights. Rockette does not argue that Chausee did anything to coerce his confession. Indeed, the purpose of Rockette’s cooperation at the interview, which his own counsel set up, was to increase […]
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