by admin
on February 4, 2002
State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen
Issue/Holding: Even assuming that the law of vindictive prosecution (presumption of vindictiveness attaches to less favorable prosecutorial action following successful appeal) applies to failure to re-offer same plea bargain following reversal of conviction, the facts would not support vindictiveness. The prosecutor offered a less favorable resolution because he had additional evidence and a stronger case, therefore no presumption of vindictiveness was established. ¶¶26-30. Nor, for similar reasons, was actual vindictiveness shown. ¶¶31-32.
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by admin
on February 4, 2002
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pit
Issue/Holding: Violation of harassment injunction isn’t lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be “subject” to injunction but not actually violate it. ¶25.)
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by admin
on February 2, 2002
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference. If the jury concludes that the person had an actual but unreasonable belief that she was in imminent danger of death or great bodily harm, the person is not guilty of first-degree intentional homicide but should be found guilty of second-degree intentional homicide.
¶104. In light of this analysis, we must modify Camacho [176 Wis. 2d 860, 869, 501 N.W.2d 380 (1993)] to the extent that it states that Wis. Stat. § 940.01(2)(b) contains an objective threshold element requiring a defendant to have a reasonable belief that she was preventing or terminating an unlawful interference with her person in order to raise the issue of unnecessary defensive force (imperfect self-defense).
It follows that Wis JI-Criminal No. 1014 is wrong, and “requires amendment.” ¶146. The court requests the Instruction Committee to revise it, but suggests that the pre-Camacho versions may be correct. ¶147. (See, however, State v. Harp, 150 Wis. 2d 861, 443 N.W.2d 38 (Ct. App. 1989).)
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by admin
on January 28, 2002
State ex rel Edwin C. West v. Bartow, 2002 WI App 42
For West: Leonard D. Kachinsky
Issue: Whether the court had discretion to order change of venue from Winnebago (county of current SVP confinement) to Milwaukee (county of commitment), on habeas challenge to the commitment.
Holding: Venue was proper in Winnebago under § 801.50(4)(b) (where petitioner is being restrained); the trial court’s transfer mistakenly relied on § 801.50(4)(a) (where petitioner was convicted or sentenced, if seeking relief from conviction or sentence). ¶¶5-6. Nonetheless, a proper result will be sustained even if based on the wrong reason. ¶7. Transfer of venue is discretionary under § 801.52, “in the interest of justice or for the convenience of the parties or witnesses.” In transferring venue, the trial court stressed that Milwaukee has “all of the documents, regarding the judgment that’s being attacked”; this is enough to satisfy the § 801.52 standard for exercising discretion. ¶¶9-10.
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by admin
on January 26, 2002
State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
For Tainter: Jack E. Schairer, SPD, Madison Appellate
Issue/Holding: The trial court properly exercised discretion in admitting into evidence actuarial instruments (by determining that they were of the type commonly relied on by experts to assess sex offender risk; and by allowing Tainter to cross-examine on the instruments). ¶20. In Wisconsin, trial courts have a limited “gatekeeper” function regarding expert testimony; if the evidence is relevant and the witness qualified as an expert, reliability is for the jury. ¶¶21-22.
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by admin
on January 24, 2002
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith
Issue: Whether defendant waived review of objection to admissibility of misconduct evidence by entering into a “Wallerman” stipulation.
Holding: A stipulation under State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (an element is conceded and the other-act isn’t admitted) waives the issue of admissibility:
¶5. We conclude that the trial court’s ruling, that other acts evidence would be admissible, did not require Frank to enter into the Wallerman stipulation. However, by entering into the stipulation and rendering the other acts evidence inadmissible, Frank waived his right to appeal the other acts ruling. We conclude that other acts evidence must be introduced at trial before a criminal defendant can argue reversible error. In any event, we agree with the State that Frank did not give up a defense by entering into the Wallerman stipulation. …¶9. Generally, when a trial court rules that certain evidence is admissible, the admission cannot be deemed prejudicial error unless the evidence actually is admitted against the party objecting to it. ….
¶14. …. Frank had a choice. He could have declined to enter into a Wallerman stipulation, thereby allowing the State to introduce the other acts evidence against him and preserving the issue of the admissibility for appellate review. Or, he could have entered into a Wallerman stipulation, thereby precluding the admission of the evidence and forfeiting his right to appellate review of the admissibility of the evidence. …
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by admin
on January 23, 2002
State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding: A defendant need not be produced for a postconviction hearing where there are no substantial issues of fact to resolve. ¶22.
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by admin
on January 23, 2002
State v. Stephen T., 2002 WI App 2
For Stephen T.: Raymond M. Dall’Osto
Issue: Whether appeal of a juvenile delinquency adjudication is rendered moot by expiration of its dispositional order.
Holding: No, at least in this instance: certain facets of the order (DNA sample; sex offender registration) survive, and appellate review will therefore have a practical effect. ¶11. (The court doesn’t say whether its mootness holding is limited to offenses that incur these particular consequences.) Moreover, the case presents an issue of great public importance likely to recur (namely, “whether a ten-year-old may be inferred to possess the same specific intent to become sexually aroused or gratified as an adolescent or adult”), an exception to the mootness doctrine. Id.
See also A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04 (federal habeas challenge to expired state court juvenile adjudication not moot, largely because adjudication could be used as aggravator, and therefore increase potential punishment).
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