Important Opinions 2009: Wisconsin Court of Appeals Criminal Opinions

Listen to this article

Battery to a Law-Enforcement Officer
A defendant can be convicted of battery to a law-enforcement officer, even if the officer entered a home in violation of the Fourth Amendment.
2009AP30-CR State v. Haywood
Issue date: Nov. 30, 2009

Child Pornography
The evidence is sufficient to support a conviction for possession of child pornography, even if the child depicted is wearing nylons.
2008AP2893-CR State v. Lala
Issue date: Aug. 10, 2009

Criminal Procedure
Counsel appointed by the court to represent an indigent defendant on appeal can use the no-merit procedures in Rule 809.32.
2008XX702-CR State v. Brown
Issue date: Oct. 19, 2009

Under Wisconsin’s Electronic Surveillance Control Law, the one-party consent exception applies when one party to the communication is a law enforcement officer.
2008AP000135-CR State v. Ohlinger
Issue date: March 23, 2009

A defendant must clearly and unequivocally declare a desire to represent himself or herself in order to invoke that right and the circuit court has no obligation to advise a defendant of that right prior to a clear and unequivocal declaration.
2008AP935-CR State v. Darby
Issue date: March 30, 2009

It was not ineffective assistance of counsel for an attorney to appear in court without his client at hearings not covered by sec. 971.04(1).
2008AP1178-CR, 2008AP1765-CR State v. Butler
Issue date: March 30, 2009

Section 971.20(5) allows for substitution only prior to the time the defendant is determined to be guilty or not guilty, whether by a factfinder or based on a guilty or no-contest plea.
2008AP1748-CR State v. Wisth
Issue date: April 6, 2009

Where a rebuttal witness for the State was a bona fide rebuttal witness, the defense attorney was not ineffective for failing to object to his testimony.
2008AP482-CR State v. Sandoval
Issue date: April 13, 2009

Even though the jury instructions and verdict form did not tie specific conduct to specific counts, the error was not prejudicial.
2007AP2941-CR State v. Becker
Issue date: April 13, 2009

Where the trial court made comments at sentencing that suggested to a reasonable person in the position of the defendant or a reasonable observer that it was improperly considering the defendant’s race in imposing sentence, the sentence must be vacated.
2008AP810-CR State v. Harris
Issue date: Jan. 26, 2009

Section 971.19(12) does not apply to charges of misconduct in public office in violation of sec. 946.12(3).
2008AP552-CR State v. Jensen
Issue date: Jan. 26, 2009

Where a defendant offered no compelling reason to substitute counsel before trial, it was not error to deny the motion for substitution and a continuance.
2007AP1982-CR State v. Prineas
Issue date: Feb. 9, 2009

A defendant has the right not to testify, a right which must be exercised knowingly and voluntarily.
2008AP1785-CR State v. Jamarillo
Issue date: Feb. 23, 2009

A student was not in custody for purposes of a Miranda analysis when he was questioned in the high school parking lot primarily by a vice-principal after a search of his vehicle revealed drugs; and school officials and police did not violate the student’s right to be free from unreasonable searches when they searched his vehicle based upon an anonymous tip.
2008AP1310-CR State v. Schloegel
Issue date: May 18, 2009

Where the trial court failed to conduct a waiver-of-counsel colloquy before denying a defendant’s request to represent himself at trial, the jury verdict must be reversed.
2008AP1521-CR State v. Imani
Issue date: June 8, 2009

Where a defendant did not present evidence that he used a different name for the last ten years, his motion to amend the name on his judgment of conviction was properly denied.
2008AP2106-CR State v. Smith
Issue date: June 22, 2009

It does not violate double jeopardy to prosecute a defendant for possession of cocaine and marijuana.
2008AP1692-CR State v. Bautista
Issue date: June 22, 2009

A deferred prosecution agreement does not permit resumption of prosecution for the underlying charge after the period of deferred prosecution has expired, even if the breach occurred during the deferral period.
2008AP1251-CR State v. Kaczmarski
Issue date: July 20, 2009

The modification of a national arrest warrant, after a defendant has invoked the speedy trial provisions of the Interstate Agreement on Detainers, is invalid.
2008AP1736-CR State v. Tarrant
Issue date: July 20, 2009

A new trial is not warranted, even though the prosecutor said in his closing that he believed the testimony of the state’s witnesses was truthful.
2008AP2574-CR State v. Lammers
Issue date: Aug. 24, 2009

Convictions for homicide by delivery of a controlled substance and contributing to the delinquency of a child with death as a consequence, based on the same conduct, do not violate the double jeopardy clause.
2008AP1968-CR State v. Patterson
Issue date: Oct. 12, 2009

Where undisputed evidence shows that the defendant did not act with utter disregard for the man he shot, the evidence is insufficient to support a conviction for first-degree reckless injury.
2007AP1052-CR State v.
Miller
Issue date: July 13, 2009

Discovery
The trial court properly exercised its discretion in allowing the attorneys of a defendant charged with possession of child pornography to have access to a hard drive containing pornography but not allowing them to have a hard drive of it.
2008AP206-CR State v. Bowser
Issue date: Aug. 10, 2009

Election Bribery
A defendant can be convicted of conspiracy to commit election bribery even though the only other conspirators were undercover police officers.
2008AP2664-CR State v. Huff
Issue date: May 11, 2009

Evidence
The trial court erroneously exercised its discretion when it admitted a computer-generated exhibit created and presented by a police officer who was not an expert, and who possessed no firsthand knowledge of the facts depicted in the animation which purportedly illustrated the State’s key witnesses’ combined testimony of what people did during the alleged crime.
2007AP2825-CR, 2007AP2826-CR, State v. Denton, State v. Dahl
Issue date: May 18, 2009

Hit and Run
Where a defendant commits hit and run and the accident results in personal injury, he can be charged with a felony.
2008AP550-CR State v. Brandt
Issue date: July 27, 2009

Jury Instructions
Even if a defendant has an explanation other than guilt for absconding, the trial court may give a flight instruction.
2008AP1473-CR & 2008AP1474-CR State v. Quiroz
Issue date: July 6, 2009

Motor Vehicles
Where a driver abruptly pulled to the side of the road when seeing a police officer, the officer acted within his community caretaker function in approaching the vehicle.
2008AP70-CR State v. Truax
Issue date: April 13, 2009

A police officer can stop a vehicle for driving with unlawfully tinted windows.
2008AP3153-CR State v. Bailey
Issue date: Aug. 17, 2009

Prior out-of-state zero tolerance suspensions do not count as prior convictions for drunk driving.
2008AP3144-CR State v. Carter
Issue date: Oct. 5, 2009

Even though a police officer thought he would lose his job if he refused to submit to a breath test, the results are admissible.
2008AP3037-CR State v. McPike
Issue date: Nov. 9, 2009

Right to Testify
A defendant who waived his right to testify can only withdraw the waiver if he makes an offer of proof.
2008AP910-CR State v. Winters
Issue date: March 16, 2009

Search and Seizure
Where a court commissioner handled and photocopied affidavits of service that were found in the courthouse hallway, that was not an illegal search and seizure in violation of the Fourth Amendment.
2008AP1641-CR State v. Russ
Issue date: April 13, 2009

Where the driver in a traffic stop leaned over the console of the vehicle and reached toward his lower body, the officer had grounds to make a protective search.
2008AP1207-CR State v. Bridges
Issue date: May 4, 2009

No Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view.
2008AP658-CR State v. Sveum
Issue date: May 18, 2009

Where a police officer acted not in his official capacity, but as a victim’s uncle, the search is not subject to the Fourth Amendment.
2008AP786-CR State v. Berggren
Issue date: June 1, 2009

Where officers saw contraband through an open door, a protective sweep was justified to ensure their personal safety.
2007AP2976-CR & 2007AP2977 State v. Lee
Issue date: June 15, 2009

Where a suspect ran into his house when officers approached for a knock and talk, exigent circumstances justified warrantless entry into the home.
2009AP249-CR State v. Phillips
Issue date: Nov. 9, 2009

Where a judge had no authority to approve an arrest warrant, the evidence gathered after the arrest must be suppressed.
2008AP2231-CR State v. Hess
Issue date: June 22, 2009

A defendant has no reasonable expectation of privacy in a package sent to a non-existent person from a non-existent sender to a vacant home.
2008AP1580-CR State v. Earl
Issue date: June 29, 2009

Where officers reasonably believed a warrant was outstanding for the defendant, their warrantless entry to arrest him was justified.
2008AP266-CR State v. Robinson
Issue date: July 6, 2009

Secret Recording
The evidence can support a conviction for secretly recording a person in the nude, even though the victim knowingly exposed her nude body to the defendant.
2007AP2130-CR State v. Jahnke
Issue date: Jan. 5, 2009

Sentence
Even though the trial court imposed a longer sentence after the defendant successfully challenged the court’s initial sentence, the longer sentence is not the product of judicial vindictiveness.
2007AP2508-CR State v. Sturdivant
Issue date: Jan. 5, 2009

A defendant who made a bomb scare at a school can be ordered to pay restitution to the school district for salaries and benefits paid to staff during the evacuation.
2008AP1275-CR State v. Vanbeek
Issue date: Feb. 16, 2009

A court’s failure to consider the sentencing guidelines is not harmless error.
2008AP2065-CR State v. Campbell
Issue date: May 11, 2009

Where the trial court at sentencing said that the defendant would receive the maximum if his extended supervision was ever revoked, the court was biased, and the sentence after revocation to the maximum must be reversed.
2008AP2623-CR State v. Goodson
Issue date: May 25, 2009

Section 973.09(2) does not prohibit a court from extending a defendant’s probation beyond the maximum term of imprisonment the defendant faced for the crime he or she committed.
2008AP2138-CR State v. Luu
Issue date: May 25, 2009

Where a defendant was serving a sentence for a misdemeanor as a habitual offender at the same time that he was serving a sentence on a felony as a habitual offender, and the court made a new sentence consecutive to that sentence, he is not entitled to any additional sentencing credit.
2008AP2206-CR State v. Lamar
Issue date: Aug. 17, 2009

A defendant cannot challenge his reconfinement after revocation of extended supervision on the grounds that the prosecutor recommended more time than the DOC.
2008AP2359-CR State v. Washington
Issue date: Sept. 7, 2009

The DOC’s denial of an inmate’s placement in the Challenge Incarceration Program, despite the trial court’s determination at sentencing that he is eligible, does not constitute a new factor for purposes of sentence modification.
2008AP3119-CR State v. Schladweiler
Issue date: Nov. 16, 2009

Sexual Assault of a Child
The sexual assault of a child statute is not unconstitutionally overbroad.
2008AP3072-CR State v. Lesik
Issue date: Dec. 7, 2009

Sexually Violent Persons
In a Chapter 980 commitment trial, even if it was error to admit testimony that, if committed, the respondent would have annual reevaluations, the error is harmless.
2008AP2439 State v. Kaminski
Issue date: Nov. 23, 2009

Theft From Person
Where the defendant grabbed a fax machine in the presence of a restaurant cashier, the evidence is sufficient to support a conviction for attempted theft from a person.
2008AP2846-CR State v. Tidwell
Issue date: Sept. 14, 2009

Victim Intimidation
The victim intimidation statute includes acts of intimidation that occur after a complaint has been sought.
2008AP2233-CR State v. Freer
Issue date: Dec. 14, 2009