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March 2010

court of appeals decision (1-judge; not for publication) Appellate Procedure – Contemporaneous Objection Rule Waiver of issue on appeal where objections lodged at trial “were not specific enough to put the trial court on notice” of the objection posited on appeal; motion for mistrial was not contemporaneous with occurrence of error and therefore “came to… Read More

court of appeals decision (1-judge; not for publication); for Trelijah: Shelley Fite, SPD, Madison Appellate Delinquency –Lifted Stay, Secure Detention Trial court’s lifting stay of 4-days’ secure detention “was based on a thorough consideration of the goals of the juvenile justice code, both at the time of disposition and at the time the stay was… Read More

court of appeals decision; pro se; Resp. Br. Appellate Procedure – Record Document not Included on Appeal ¶8 n.7: To any extent that it is relevant to our analysis, we assume that the missing transcript of the March 23, 2009 hearing on the merits supports the circuit court’s ruling. See Fiumefreddo v. McLean, 174 Wis. 2d… Read More

State v. Mitchell D. Pask, 2010 WI App 53; for Pask: Jefren E. Olsen, SPD, Madison Appellate; Resp. Br.; Reply Br. ¶1 … (W)hen there is evidence that a defendant has an intention to take a child to a place that is partially screened or hidden from view, a jury may find that it is… Read More

State v. Benjamin W. Mercer, 2010 WI App 47; prior history: Certification, 7/1/09, rejected 9/10/09; for Mercer: Steven P. Sager A person can knowingly possess images of child pornography while viewing them on a computer, even though they aren’t stored on the hard drive. ¶29      Our impression of these cases is that courts are more… Read More

State v. Carl A. Lewis, Jr., 2010 WI App 52; for Lewis: John T. Wasielewski; Resp. Br.; Reply Br. Appellate Procedure – Standard of Review: Government Informant ¶16      Our discussion must begin, as it almost always does, with the standard of review.  In deciding whether a person is a government informant or agent for purposes… Read More

Habeas Review: Jury Selection Process

Berghuis v. Smith, USSC No. 08-1402, 3/30/10 Defendants have Sixth Amendment right to impartial jury drawn from fair cross section of community. To establish prima facie violation of this "fair-cross-section," requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic… Read More

court of appeals decision (3-judge; not recommended for publication); for Lidell: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br. Ineffective Assistance Failure to impeach complainant with various prior inconsistent statements either adequate strategy or non-prejudicial; failure to call witnesses proper strategy, where attorney interviewed them and determined “that their demeanor would not help the defense.”… Read More