On Point

State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere),

Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004)

Issue/Holding:

In order not to offend the First Amendment, a statute that regulates the time, place, and manner of expression must be (1) content neutral, (2) narrowly tailored to serve a significant governmental interest, and (3) allow for ample alternative channels for the expression. Ward, 491 U.S. at 791, 109 S. Ct. at 2753.

State v. Miyosha White, 2004 WI App 237, PFR filed 12/1/04
For White: Leonard Kachinsky

Issue/Holding: A sentencing court exercising discretion on eligibility for the earned release program, § 973.01(3g), has authority to determine not only whether but also when the defendant is eligible for the program. The language and purpose of the earned release statute is “almost identical” to the “boot camp” statute, § 973.01(3m),

State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision
For Kyles: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether a per se rule should be adopted allowing a frisk whenever individuals fail to comply with police directives to keep their hands out of their pockets.

Holding:

¶48. We do not adopt, as the State urges,

State v. David A. Lehman, 2004 WI App 59, PFR filed 3/4/04
For Lehman: Leonard D. Kachinsky

Issue/Holding: Sentencing court may impose 4-year waiting period for entry into Challenge Incarceration Program (“boot camp”), §§ 302.045, 973.01(3m):

¶17. The intent of the legislature is therefore advanced by an interpretation of Wis. Stat. § 973.01(3m) that allows a sentencing court to determine not only whether a defendant is eligible for the CIP,

State v. Jack P. Lindgren, 2004 WI App 159, PFR filed 8/20/04
For Lindgren: Stephen M. Compton

Issue/Holding: Search warrant application was supported by probable cause to search the defendant’s home and his computer, based on allegation of 15-year-old victim, that defendant had taken photographs of her posing nude, and had touched her vaginal area and admission of defendant that he had taken nude photos of her;

State v. John R. Maloney, 2004 WI App 141, affirmed, 2005 WI 74

Issue/Holding: The WESCL bars interception of a communication where the intent is to commit an “injurious act,” a showing that Maloney can’t make:

¶16. Generally, intent presents a question of fact that we are not allowed to resolve. See, e.g., State v. Lossman, 118 Wis.

State v. Jeffrey P. Powers, 2004 WI App 143
For Powers: Walter Arthur Piel, Jr.

Issue/Holding:

¶8. Before addressing Powers’ arguments, we will clarify when a seizure occurs. The trial court held that Powers was seized when Bethia activated his emergency lights. That is not the law in Wisconsin. In State v. Kelsey C.R., 2001 WI 54, ¶33, 243 Wis.

State v. Jeffrey P. Powers, 2004 WI App 143
For Powers: Walter Arthur Piel, Jr.

Issue/Holding:

¶9. Powers attacks the tip provided by the clerk at Osco; he contends that Bethia could not give it any credence. We begin by restating the obvious: when a caller provides his or her name, the tip is not anonymous; it is a tip from a citizen informant. See Sisk,

State v. Jeffrey P. Powers, 2004 WI App 143
For Powers: Walter Arthur Piel, Jr.

Issue/Holding:

¶10. Powers insists that the clerk’s tip is unreliable because the clerk did not observe Powers drive his truck “in a manner consistent with someone who was under the influence of an intoxicant.” We conclude that the tip was reliable for several reasons.

¶11. First, the tip was based on first-hand observations.