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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.

Common Law Defenses – Causation, Homicide – “Year and a Day” Rule

State v. Waylon Picotte, 2003 WI 42, on certification
For Picotte: John T. Wasielewski

Issue: Whether conviction for homicide is barred because the victim did not die within a year and a day of infliction of the fatal injuries.

Holding:

¶5. We disagree with the circuit court and hold that the defendant’s conviction in this case is barred by the common-law year-and-a-day rule.

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§ 941.23, Carrying concealed weapon – Facial Constitutionality, in Light of Wis. Const. Art. I, § 25

State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate 

Issue: Whether § 941.23 is facially unconstitutional as impermissibly infringing on the right to bear arms.

Holding: The constitutional right of an individual to bear arms, Wis. Const. Art. I, § 25, being “fundamental” in nature, ¶20, the question is whether § 941.23 “reasonably” restricts that right, which in turn requires balancing the interests involved.

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§ 941.23, Carrying concealed weapon – As-AppliedConstitutionality, in Light of Wis. Const. Art. I, § 25

State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate 

Issue: Whether § 941.23 is unconstitutional as applied to Cole.

Holding:

¶48. Cole claims that he was carrying the weapons because he had been “the victim of a brutal beating when he was younger and he did not feel safe in the neighborhood.” (Pet’r Br. at 3.) He did not assert that he had the weapons in the car in response to any specific or imminent threat.

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§ 948.22, Nonsupport — Modification of Support Payments – Factors: Incarceration

State v. Terry L. Dumler, 2003 WI 62, affirming summary order
For Dumler: Todd G. Smith

Issue/Holding:

¶ 1.… The central issue before this court is whether the circuit court erroneously exercised its discretion in refusing to reduce Dumler’s child support payments in light of Dumler’s incarceration and resulting change in income. Although we find it appropriate for a court to consider incarceration when reviewing a request for modification,

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§ 904.04 – Greater Latitude Rule in Sexual Assaults

State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg

Issue/Holding:

¶86. We have ruled that “Wisconsin courts permit a more liberal admission of other crimes evidence in sexual assault cases than in other cases.” Davidson, 236 Wis. 2d 537, ¶44; State v. Hammer, 2000 WI 92,

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Hearsay – Recent Perception, § 908.045(2)

State v. Matthew J. Knapp, 2003 WI 121, on certification
For Knapp: Robert G. LeBell

Issue/Holding:

¶184. We find no clear error in the circuit court’s determination that the third-party hearsay evidence in item 21(a) of Knapp’s offer of proof comes within the recent perception exception under Wis. Stat. § 908.045(2),29 to the hearsay rule. Farrell’s inability to recall, 12 years after the fact,

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Hearsay – Recent Perception, § 908.045(2)

State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly

Issue/Holding:

¶16. Weed argues that the circuit court erroneously exercised its discretion in admitting Michael’s statement regarding unloading the .357 because the statement did not meet the statutory requirements for admissibility under Wis. Stat. § 908.045(2). Weed principally argues that Michael’s statement was inadmissible under the exception due to the lack of a proper foundation;

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Hearsay – Against-Interest Statement, § 908.045(4) — Exculpating Defendant

State v. Sherrie S. Tucker, 2003 WI 12, on certification
For Tucker: Paul LaZotte, SPD, Madison Appellate

Issue/Holding:

¶32. At the postconviction hearing, the circuit court upheld its prior ruling that McCray’s statements were not admissible as either statements against penal interest or under the residual exception to the hearsay rule. The circuit court noted that McCray’s statements attempted to exculpate Tucker without inculpating himself.

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Constitutional Defenses – Ex Post Facto – Change in Statute of Limitations

State v. Jeffrey B. Haines, 2003 WI 39, 2002 WI App 139
For Haines: Mark A. Huesmann, Sonja Davig Huesmann

Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.

¶15. In sum, the court of appeals succinctly and correctly reasoned that:

[T]he 1994 amendment to Wis.

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Sentencing – Factors: (PAC-Related, District-by-District) Sentencing Guidelines, Validity

State v. Patty E. Jorgensen, 2003 WI 105, affirming unpublished opinion of court of appeals
For Jorgensen: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding1: Sentencing guidelines for specified offenses (namely: §§ 346.63 (1) (b) or 346.63(5) [PAC offenses]) are within the authority granted by § 346.65(2m)(a). ¶¶16-18. However, the guidelines do not apply to an offense under § 346.63(1)(a) (OWI), therefore “it is inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in a § 346.63(1)(a) case.” ¶27.

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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.