by admin
on February 27, 2000
State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238
For Oswald: James L. Fullin, Jr., SPD, Madison Appellate
Issue: Whether a statement made while hospitalized should have been suppressed, as the product of a lengthy detention for the purpose of interrogation.
Holding:
¶46 When a confession is the product of “unreasonable police detention for purposes of interrogation,” it must be suppressed whether voluntary or not. State v. Wallace, 59 Wis.2d 66, 75-76, 207 N.W.2d 855, 860-61 (1973). A lengthy detention for interrogation is improper if its purpose is to coerce the accused into making “a confession or culpable statements to assure a finding of guilty.” Briggs v. State, 76 Wis.2d 313, 325, 251 N.W.2d 12, 17 (1977).
¶47 Here, Oswald’s detention was not even for interrogation, much less prolonged interrogation meant to extract a confession. Oswald was hospitalized because he had injured himself in a police chase after committing armed robbery. Contrary to Oswald’s testimony that he was held incommunicado, the officers collecting the hair sample testified that they informed Oswald that an attorney was on his or her way to the hospital and would talk to him if he so desired. While Oswald’s testimony was otherwise, we will not overturn the trial court’s credibility determinations. See State v. Wilson, 179 Wis.2d 660, 683, 508 N.W.2d 44, 53 (Ct. App. 1993). Finally, Oswald himself called his hospital guard as a witness at trial. That officer testified that he had offered to pass along Oswald’s request for an attorney or to get Oswald a phone book so that he could call an attorney. In sum, the record belies Oswald’s claim that he was held incommunicado and his statement was the result of an unreasonable detention for purposes of interrogation.
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by admin
on February 27, 2000
State v. George W. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48
For Hindsley: James B. Connell
Issue: Whether a statement is involuntary, even in the absence of police coercion, simply because the Miranda warnings aren’t effectively communicated.
Holding: A suspect’s deafness doesn’t alter the test for voluntariness, “which was and remains focused on police coercion, and considers a person’s language and culture only insofar as they bear on whether coercion by more subtle means, rather than by overt acts, took place. ¶41. No coercion was used, and the statement, though violating Miranda, was voluntary.
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by admin
on February 25, 2000
Mogged v. Mogged, 2000 WI App 39, 233 Wis. 2d 90, 607 N.W.2d 662
Issue/Holding: Brief adopting “vituperative tone” and making misleading, unsupported arguments violates Rules of Professional Conduct and is stricken. ¶¶21-24. (Note that the court cites 7th Circuit caselaw, ¶22, suggesting that decisions from that body are very pertinent.)
Appellate briefs containing personal attacks sufficiently inflammatory subject the author to the range of sanctions avaialble under the code of professional responsibility, see, e.g., Matter of Abbott, 925 A.2d 482 (Del. 2007).
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by admin
on February 25, 2000
Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144
For Appellant: James L. Boardman; Chris R. Velnetske
Issue: Whether the court of appeals acquires jurisdiction over a CHIPS appeal commenced by notice of appeal without prior notice of intent to pursue relief.
Holding: ¶4:
In CHIPS cases, appeals are commenced by first filing of a notice of intent to pursue postconviction relief, and then by a notice of appeal. See WIS. STAT. § 809.30(2) (1997-98). Because no notice of intent has been filed in this case, the purported notice of appeal is premature. We will, however, construe James B.’s ‘notice of appeal’ as the notice of intent to pursue postconviction relief.
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by admin
on February 25, 2000
State v. Romero D. Wilson, 2000 WI App 114, 235 Wis.2d 177, 612 N.W.2d 368
For Wilson: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether an order dismissing a complaint, on refusal to bind over at preliminary hearing, is final and therefore appealable by the state.
Holding: An order dismissing a complaint is a final order, appealable by the state as of right (reaffirming State v. Fry, 129 Wis. 2d 301, 304, 385 N.W.2d 196 (Ct. App. 1985); subsequent amendment to the state’s appeal statute, § 974.05(1)(a) deemed a mere effort “to simplify” that statute). Outside of double jeopardy circumstances, the state may appeal any adverse final order or judgment, namely one that “terminates the entire matter in litigation.”
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by admin
on February 25, 2000
State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11
For Williams: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court erroneously refused to accept an “Alford” plea under its express policy of never accepting one.
Holding:
¶8 Even if we were to determine that the trial court erred in rejecting the tendered Alford plea, the error would not justify setting aside the results of Williams’s jury trial. This is because any error stemming from a trial court’s refusal to accept an Alford plea, like error in binding over a defendant following a preliminary hearing, is cured when a defendant receives a fair and error-free trial. See State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991)….
¶12 (A) defendant’s opportunity to obtain the benefit of a plea bargain can be adequately protected by requiring a defendant who believes his tendered plea has been improperly rejected to seek leave for an interlocutory appeal.
Is this result at least arguably inconsistent with State v. Ludwig, 124 Wis.2d 600, 369 N.W.2d 722, 725-728 (1985) and State v. Fritz, 212 Wis.2d 284, 569 N.W.2d 48 (Ct. App. 1997)? — i.e., counsel’s deficiency in failing to convey to or properly advise a defendant with respect to a plea offer isn’t rendered non-prejudicial by a resultant fair trial.)
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by admin
on February 25, 2000
State v. Warrick D. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, on certification
For Floyd: David D. Leeper
Issue: Whether a defendant is entitled to sentence credit under Wis. Stat. § 973.155(1) for time spent in custody on a charge that is dismissed and read-in at sentencing.
Holding: Pre-trial confinement on a charge dismissed and read in at sentencing is related to the sentenced offense and therefore qualifies for credit:
¶31 In limiting the statute’s scope, we recognize the important distinction between read-ins and other charges, including pending charges, acquittals or dismissals. The unique nature of read-in charges and this state’s read-in procedure, viewed in the context of the legislative history and purpose of the sentence credit statute, lead us to conclude the legislature intended that Wis. Stat. § 973.155(1) provide sentence credit for these charges. Applying the rule of lenity, we also construe this ambiguous statute strictly in favor of Floyd. State v. Bohacheff, 114 Wis. 2d 402, 417, 338 N.W.2d 466 (1983); State v. Frey, 178 Wis. 2d 729, 745, 505 N.W.2d 786 (Ct. App. 1993).
¶32 In summary, we determine that pre-trial confinement on a dismissed charge that is read in at sentencing relates to “an offense for which the offender is ultimately sentenced.” Pursuant to Wis. Stat. § 973.155(1), Floyd is entitled to sentence credit for the time spent in confinement from the date of his arrest on armed robbery to the date of sentencing. Accordingly, we reverse and remand to the circuit court with directions to recalculate Floyd’s sentence credit.
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by admin
on February 25, 2000
State ex rel. Larry E. Olson v. Litscher, 2000 WI App 61, 233 Wis. 2d 685, 608 N.W.2d 425
For Olson: Dennis Egre, SPD, Kenosha
Issue: Whether this case is moot, where the challenge is to the authorities’ failure to parole a prisoner at his mandatory release date, but he was released during the pendency of the case.
Holding: Although Olson’s release rendered the case moot, recognized exceptions to mootness are present, namely, issue of “great public importance”; constitutional issue; trial courts’ need for guidance. “Furthermore, we take up moot questions where the issue is ‘likely of repetition and yet evades review’ because the situation involved is one that typically is resolved before completion of the appellate process.” ¶3.
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