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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.

§ 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, 231 Wis.2d 447, 462, 605 N.W.2d 567 (Ct.

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§ 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 told the jury that a member of the clergy is a “therapist,” without specifically requiring that Draughon in fact performed therapy:

¶13      Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments.

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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.

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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 is “intended to cause great bodily harm or death” or that “create[s] an unreasonable risk of great bodily harm or death.” However,

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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 such a facility as a result of additional offense.

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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:

¶17      First, at the very least, trial counsel’s objection should have led the court to Wis.

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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 that the procedural bar of Escalona-Naranjo,

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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 premise of the motion is that the appeal is frivolous.”

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Certiorari — Availability

State ex rel. David C. Myers v. Swenson, 2004 WI App 224

For Myers: Christopher T. Sundberg; Bruce D. Huibregtse

Issue/Holding:

¶8 Myers appears to argue that the Wisconsin courts retain the ability to conduct certiorari review of a Wisconsin inmate’s due process or equal protection challenge to a disciplinary action, even if the challenge involves conduct and a disciplinary proceeding that took place while the inmate was housed out of state.

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Certiorari – Judicial Act – Review Limited to Determining Tribunal’s Jurisdiction

State v. Christopher Swiams, 2004 WI App 217, District 1, 10/19/04 (published); case activity

Issue/Holding:

¶8. … The State contends, however, that reconfinement orders may only be reviewed via common-law certiorari and not under Wis. Stat. Rule 809.30. It relies on State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995) (per curiam).

¶10.

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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.