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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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Authentication, § 909.01
State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116 For Smith: Patrick M. Donnelly, SPD, Madison Appellate Issue/Holding: Testimony of a court employee that she had examined a certified copy of a foreign court order and that the exhibit to be admitted into evidence was a copy of that order sufficiently authenticated […]
Rape-Shield, § 972.11 – Semen Swab Not Linked to Defendant
State v. Tyrone Booker, 2005 WI App 182 For Booker: Jeffrey W. Jensen Issue: Whether the trial court erroneously exercised discretion under the rape-shield law, and denied effective cross-examination, by excluding evidence of semen swabs of the alleged sexual assault victim not linked to Booker, where the allegations against him involved touching not intercourse. Holding: ¶16 … […]
§ 904.01, Relevance – Consciousness of Guilt: Flight
State v. Lionel N. Anderson, 2005 WI App 238 For Anderson: Harry R. Hertel; Steven H. Gibbs Issue/Holding: Evidence of flight is not other-acts evidence but, rather, “an admission by conduct”; thus, evidence that Anderson fled the state after learning that the police had been contacted was admissible, ¶29, citing, State v. Earl L. Miller, […]
§ 940.22(2), Sexual Exploitation by Therapist – Clergy as “Therapist,” Jury Instructions
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed For Draughton: Stephen L. Miller Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they […]
OWI, § 346.63(1)(am) – Elements, Proof of “Impairment” Not Necessary
State v. Joseph L. Smet, 2005 WI App 263 For Smet: Christopher A. Mutschler Issue/Holding: Proof of “impairment” is not a necessary element of § 346.63, ¶¶12-16. Section 346.63(1)(am) (driving under influence of detectable amount of THC, regardless of impairment) is constitutional as against police power, due process, and equal protection attack, ¶¶6.
Defenses – § 948.03(2)(b) (2001-02), Harm to Child – Defense of Parental Privilege, § 939.45(5)
State v. Kimberly B., 2005 WI App 115 For Kimberly B.: Anthony G. Milisauskas Issue/Holding: ¶30 While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that […]
SVP – Qualifying Placement, § 980.02(2)(ag) – Secure Facility, Juvenile Adjudication
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05 For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee TrialI Issue: Whether a ch. 980 petition is supported against a juvenile who was not placed in a secured correctional facility following the original adjudication on the qualifying sexually violent offense but was subsequently placed in […]
Evidence, Admissibility – Sufficiency of Objection
State v. Van G. Norwood, 2005 WI App 218 For Norwood: Terry Evans Williams Issue: Whether objection to admissibility of a defendant’s statement on the ground that it was “an offer of settlement” (which thus raised a § 904.08 bar) sufficed to raise a § 904.10 objection of an inadmissible offer to plead guilty. Holding: […]
Serial Litigation Bar (Escalona-Naranjo): Applicable to No-Merit Report, § 809.32 (Anders Appeal)
State v. Christopher G. Tillman, 2005 WI App 71 Tillman, pro se Issue/Holding: ¶2. The issue on the instant appeal is whether the procedural bar of Escalona-Naranjo may be applied when a prior appeal was processed under the no merit procedure set forth in Wis. Stat. Rule 809.32. For the reasons stated below, we conclude […]
No-Merit Appeal: Generally
State v. Christopher G. Tillman, 2005 WI App 71 Tillman, pro se Issue/Holding: ¶16. The no merit appeal procedure has its genesis in Anders v. California, 386 U.S. 738 (1967), and is codified in Wis. Stat. Rule 809.32. … Any motion to withdraw pursuant to Anders “necessarily implicates the merits of an appeal, because the […]
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.