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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.
Counsel – Ineffective Assistance – Deficient Performance – Examination of Witness – Eliciting Comment on Witness’s Credibility
State v. Robert L. Snider, 2003 WI App 172, PFR filed 8/22/03
For Snider: Timothy J. Gaskell
Issue/Holding: The detective’s testimony as to what he believed at the time he was conducting the investigation did not amount to a comment on the credibility of a witness, hence was not deficient performance, ¶27. Moreover, “(c)ounsel’s attempt to discredit the investigating detective by showing that he came to a premature conclusion regarding what had occurred,
Counsel – Ineffective Assistance – Deficient Performance – Investigation – Strategy Determined At Time, Not Through Hindsight
State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry
Issue/Holding:
¶35. Wright’s appellate argument rests largely on Van Rybroek’s testimony at the Machner hearing, which documents the unreliability of eyewitness testimony. However, as the trial court aptly observed, trial counsel’s decision to forego an expert was made prior to Lomack surfacing as a potential witness and prior to the trial court’s ruling that Van Rybroek’s testimony was admissible under those changed circumstances.
Ineffective Assistance – Counsel – Deficient Performance – Failure to Obtain DNA Tests
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Counsel’s admittedly non-tactical failure to obtain DNA results on hair found on the victim’s pants and on scrapings from her fingernails was deficient, similar to State v. Glass, 170 Wis. 2d 146, 488 N.W.2d 432 (Ct. App. 1992):
¶40. Here,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Offer Alternative Medical Testimony
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Counsel’s failure to offer independent medical evidence that would have challenged the state’s expert as to the weapon used to kill the victim and that would have indicated that the murder was consistent with a sex crime, was deficient performance:
¶42. Given the particular facts of this case,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Challenge Hypnotically Refreshed Testimony
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Counsel’s failure to challenge a witness’s hypnotically refreshed testimony, as violating the guidelines of State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983), was deficient:
¶45. To begin, we are not persuaded by counsel’s explanation of his trial strategy.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate Potential Defense – Guilty Plea
State v. Harold C. Pote, III, 2003 WI App 30
For Pote: John A. Pray, Remington Law Center
Issue: Whether counsel was ineffective for failure to investigate a potential defense (inability to work for medical reasons) to one of two counts of nonsupport, where counsel complied with the defendant’s instruction to obtain a plea bargain involving no incarceration and the count with the potential defense was dismissed under the plea bargain.
Defenses – Territorial Jurisdiction, § 939.03 – Instructions
State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth
Issue: Whether defendant was entitled to an instruction on territorial jurisdiction, § 939.03, where the offense was partially committed out of the state.
Holding:
¶23. The question of whether or when a jury must be instructed on the State’s burden to establish its territorial jurisdiction over a defendant for charged offenses appears to be one of first impression in Wisconsin.
Defenses – Privilege, § 939.45 – CCW, § 941.23
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding: Wis. Const. Art. I, § 25 (right to bear arms) does not establish a privilege defense to CCW, § 941.23, under § 939.45.
As to subs. (1): “The existence of random, albeit frequent, criminal conduct in one’s vicinity does not qualify as a ‘natural physical force’ under the law.
Defenses – Statute of Limitations, § 939.74(1) – Complaint as Commencing Prosecution of Already-Incarcerated Defendant
State v. Kevin D. Jennings, 2003 WI 10, reversing 2002 WI App 16, 250 Wis. 2d 138, 640 N.W.2d 165
For Jennings: Steven M. Compton
Issue/Holding:
¶1 … At issue is whether a criminal complaint that is filed against a defendant, who is already incarcerated, is sufficient to commence a prosecution. Based on the legislative history of Wis. Stat. § 939.74(1) (1999-2000) and related criminal statutes that deal with the commencement of criminal prosecutions and warrantless arrests,
Defenses – Statute of Limitations, § 939.74(1) – “DNA Complaint” as Satisfying
State v. Bobby R. Dabney, 2003 WI App 108, PFR filed 5/23/03
For Dabney: Lynn E. Hackbarth
Issue/Holding:
¶21. Here, it is undisputed that the DNA profile complaint and warrant were issued three days before the statute of limitations expired. We have already concluded that the complaint and warrant in this case were sufficient to commence the prosecution. Thus, the case was timely filed.
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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.