On Point

State v. Jose Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913

Issue: Whether the trial court incorrectly applied federal poverty guidelines in refusing to appoint counsel at county expense, after the defendant failed to qualify under public defender standards.

Holding: Although federal poverty guidelines are not necessarily conclusive, they should be used “as a proper consideration for court-appointed counsel,” ¶8. Here, the court considered these guidelines in denying the defendant’s request for counsel without a hearing,

State v. John F. Giminski, 2001 WI App 211, PFR filed 9/20/01
For Giminski: Edward J. Hunt

Issue: Whether the defendant was entitled to invoke the privilege of defense of others, § 939.48(4), in using potentially deadly force against police officers who had pulled a gun on his daughter while executing a valid warrant.

Holding:

¶13. (T)he privilege of defense of others, like the privilege of self-defense,

State v. Carl R. Kramer, 2001 WI 132, reversing and remanding 2000 WI App 271, 240 Wis. 2d 44, 622 N.W.2d 4
For Kramer: Stephen D. Willett

Issue1: Whether Kramer established a prima facie case for selective prosecution.

Holding: On a selective prosecution claim, the defendant must show both discriminatory purpose and effect. The state concedes discriminatory purpose. As to effect: Prosecutorial selectivity is itself non-problematic.

State v. Ronald G. Sorenson, 2001 WI App 251, PFR filed
For Sorenson: T. Christopher Kelly

Issue1: Whether issue preclusion (collateral estoppel) may be used “offensively” by the state in a Ch. 980 trial to bar a respondent from presenting evidence that s/he didn’t commit the offense which underlies the qualifying conviction.

Holding:

¶28  Accordingly, we hold that the doctrine of issue preclusion is available for use offensively in Chapter 980 trials.  

State v. Philip M. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, reversing State v. Canon, 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999)
For Canon: Alan D. Eisenberg

¶1 The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(1)(a)(1997-98) for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue,

State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney

Issue: Whether a verdict of acquittal in the defendant’s prior trial estopped the prosecution from retrying the ultimate fact resolved by that acquittal.

Holding:

¶7 ‘Under the collateral estoppel doctrine an issue of ultimate fact that is determined by a valid and full judgment cannot again be litigated between the same parties in a subsequent lawsuit.’ State v.

State v. Jeremy J. Hanson, 2001 WI 70, 628 N.W.2d 759
For Hanson: James B. Connell

Issue: Whether DOT rescission of a defendant’s HTO status under § 351.09 “relates back” to the date of the charged offense so as to nullify that HTO classification and render him or her ineligible for enhanced sentencing.

Holding:

¶32. Given the accepted meaning of the language of § 351.09 and the legal effect attributable to ‘rescind’ and ‘rescission,’ we conclude that the effect of the Department’s recalculation of Hanson’s HTO status was an annulment and abrogation of that status from the outset of its existence.

State v. Paul J. VanLaarhoven, 2001 WI App 275
For VanLaarhoven: Michele Anne Tjader

Issue: Whether a blood sample, properly obtained under the Implied Consent law, may be analyzed without a warrant.

Holding: The Implied Consent law requires that all who apply for a driver’s license consent not only to provide a sample, but also a chemical analysis of the sample, ¶¶7-8. More broadly: “the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant.”

State v. Robert W. Wodenjak, 2001 WI App 216, PFR filed 8/31/01
For Wodenjak: Rex Anderegg

Issue: Whether administration of a blood test, following OWI arrest, was reasonable under the fourth amendment, where the police first rejected the driver’s request for a (less invasive) breath test.

Holding: As long as the standard for warrantless blood draw established by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), 

State v. William K. Nord, 2001 WI App 48, 241 Wis. 2d 387, 625 N.W.2d 302
For Nord: Timothy J. O’Brien

Issue: Whether the implied consent statute, § 343.305(4) violates due process by providing misleading information regarding the consequences for taking or refusing the test.

Holding: The warning that the motorist “will be subject to other penalties” beyond revocation doesn’t overstate the consequences for refusal, because refusal can result in substance assessment,