On Point

State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80 For Roberson: Richard D. Martin, SPD, Milwaukee Appellate Issue/Holding: “(E)vidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal […]

State v. Shaun E. Kelley, 2005 WI App 199 For Kelley: Gregory Bates Issue/Holding: ¶13      Kelley also argues that the search violated the scope of consent. He contends that an accelerant and phone handset could not have been found under his bed and therefore that place should not have been searched. We disagree. … ¶14      […]

State v. Shaun E. Kelley, 2005 WI App 199 For Kelley: Gregory Bates Issue/Holding: ¶12      Kelley contends that the police should have disclosed that they had reason to believe he had child pornography in his apartment. We are not persuaded that the detectives’ failure to disclose all their suspicions invalidated an otherwise validly obtained consent. […]

Brown County DHS v. Terrance M., 2005 WI App 57 Issue/Holding: ¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which […]

Brown County DHS v. Terrance M., 2005 WI App 57 Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9. […]

State v. Somkith Neuaone, 2005 WI App 124 For Neuaone: Ralph Sczygelski Issue/Holding: Where the sole basis for recusal is a claim that the judge was exposed to relevant sentencing information that he was entitled to hear, the very premise for the claim is flawed, ¶17. ¶16            Whether a judge was a “neutral and detached magistrate” is […]

Harrison Franklin v. McCaughtry, 398 F.3d 955 (7th Cir 2005), granting habeas relief in unpublished opinion of Wis COA Issue/Holding: The tripartite test for judicial bias (subjective inquiry answered by trial judge’s determination of own impartiality; objective examination as to whether reasonable person could question judge’s impartiality; and if partiality is established, whether it was harmless, see State v. Rochelt, 165 […]

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: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the […]

Brown County DHS v. Terrance M., 2005 WI App 57 For Terrance M.: Theresa J. Schmieder Issue/Holding: ¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute […]

State v. Van G. Norwood, 2005 WI App 218 For Norwood: Terry Evans Williams Issue/Holding: Defendant’s withdrawal of his NGI plea prevented him from later invoking the right of judicial substitution provided by § 971.20(5), where a new judge was subsequently assigned and no prior right to substitution invoked. The court’s analysis doesn’t track the actual […]