On Point

State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry

Issue/Holding:

¶43. Wright argues that Lomack’s testimony was relevant on the issue of whether the police lineup was suggestive. In assessing relevance, the trial court must determine whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning

Issue/Holding:

¶29 …. Silva’s brother testified that on the day of the assault Silva attended a service that discussed the act of “sinning again.” Silva’s brother stated that Silva sat down during the discussion while everyone else remained standing. This behavior is consistent with the conduct of a person who has recently committed a crime and is admissible as such.

State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper

Issue/Holding: Greater statutory double jeopardy protection afforded drug prosecution under § 961.45 than non-drug prosecution under § 939.71 doesn’t violate equal protection:

¶55. We note that while Wis. Stat. § 939.71 adheres to the dual sovereignty doctrine, Wis. Stat. § 961.45 does not. We therefore conclude, as the supreme court did in Petty,

State v. Jeffrey J. Meeks, 2003 WI 104, overruling State v. Jeffrey J. Meeks,
For Meeks: Christopher T. Van Wagner

Issue: Whether the trial court, in ruling on competency, improperly relied on its perceptions of the defendant’s attorney in a prior case, in stressing that that attorney hadn’t raised competency.

Holding:

¶1     … 

State v. Paul J. Stuart, 2003 WI 73, on certification (subsequently reversed on other grounds, State v. Paul J. Stuart, 2005 WI 47)
For Stuart: Christopher W. Rose

Issue/Holding: Supreme court disposition of an earlier appeal via summary order is law of the case as to subsequent appeal; the order resolved a question of law despite failing to state reasons: though an affirmance of a discretionary ruling may not determine a question of law,

State v. Gary M.B., 2003 WI App 72, affirmed on other grounds, 2004 WI 33
For Gary M.B.: T. Christopher Kelly

Issue/Holding: A court of appeals holding in a case reversed by the supreme court on other grounds, so that this holding was neither “overruled, withdrawn, or modified,” continues to bind the court of appeals. ¶13.

The court of appeals had held under similar circumstances to Gary M.B.’s that defensive use didn’t trigger waiver, 

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

Issue/Holding: Although a facial challenge to the constitutionality of a statute is not waived by a guilty plea (because such a defect would go to subject matter jurisdiction, something not subject to waiver), an “as applied” challenged is waived by the plea. ¶46.

State v. Frederick Robertson, 2003 WI App 84
For Robertson: Jefren Olsen, SPD, Madison Appellate

Issue/Holding: Where principal issue concerned the complainant’s credibility, indication first revealed after conviction that she had been treated for depression with psychotic features around the time of the incident required in camera inspection to determine whether her mental health records must be disclosed to the defense.

This case arrives at the unmapped intersection of postconviction discovery and privileged records.

State v. Lindsey A.F., 2003 WI 63, affirming 2002 WI App 223, 257 Wis. 2d 650, 653 N.W.2d 116
For Lindsey A.F.: Eileen Hirsch, SPD, Madison Appellate

Issue/Holding: ¶7 n. 5:

As a general rule, this court will not consider an issue which will not have any practical effect upon an existing controversy. State v. Leitner,

State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue/Holding: Fact that probaiton/parole agent wasn’t mental health specialist didn’t preclude him offering lay expert opinion on likelihood of ch. 980 respondent re-offending. Lay expertise may be found under § 907.02, based on relevant experience, education, and/or training.