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5. Plain error

Rock County v. H.V., 2021AP1760-FT, 1/13/22, District 4 (1-judge opinion, ineligible for publication); case activity This appeal concerns a recurring problem in Chapter 51 cases: the lack of objection to damaging hearsay at the final hearing. If the appellate lawyer raises ineffective assistance of counsel in the circuit court, the case will become moot before… Read more

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State v. Thomas A. Nelson, 2021 WI App 2; 12/9/20, District 2; case activity (including briefs). This split court of appeals opinion, which is recommended for publication, has “petition granted” written all over it.  Crawford v. Washington, 541 U.S. 36, 68 (2004) held that a trial court violates a defendant’s right to confrontation when it… Read more

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State v. John A. Augoki, 2016AP231-CR, 4/25/17, District 1 (not recommended for publication); case activity (including briefs) Augoki raises two claims on appeal of his jury-trial conviction of three sexual assaults: that the jury heard other-acts evidence it should hot have heard (raised here as plain error) and that the court unconstitutionally limited his cross-examination of a… Read more

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Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5th Cir. 2011) When is plain really plain? That’s the plain and simple issue in this case.  During trial, the district court decided a substantive legal question against the defendant.  But while the case was on direct appeal, SCOTUS, in a separate case, settled… Read more

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State v. Marvin L. Beauchamp, 2011 WI 27, affirming 2010 WI App 42; for Beauchamp: Craig S. Powell; case activity Confrontation – Dying Declaration, § 908.045(3) ¶34  We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline… Read more

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Plain Error

State v. Erik B. Hudson, 2010AP000780-CR, District 3, 8/10/10 court of appeals decision (1-judge, not for publication); for Hudson: George S.Pappas, Jr.; BiC; Resp. While “better practice” would have been to strike and give a curative instruction following a witness’s non-responsive testimony, the trial court’s failure to do so wasn’t plain error… Read more

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Plain Error, § 901.03 – Generally

State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09 For Lammers: Amelia L. Bizzaro Issue/Holding: ¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App… Read more

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State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09 For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel Issue/Holding: Unpreserved challenge to sexual assault nurse examiner’s testimony (that abrasions were consistent with forcible intercourse and that no complainant had ever provided her with an inaccurate history) didn’t rise to plain error: ¶12      As… Read more

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