State v. Edward W. Johnson, Jr., 2002 WI App 166 For Johnson: Robert T. Ruth Issue/Holding: Judicial estoppel requires that the party’s position be completely adopted. (Johnson therefore not estopped from challenging restitution amount he agreed to below because he also asked for probation but was given some jail time.) ¶24… Read more
D. Waiver of issues/arguments
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02 For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for… Read more
Barbara R.K. v. James G., 2002 WI App 47 Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge. Holding: ¶9. … The statute then provides: ‘If the judge named in the substitution request finds that the request was… Read more
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02 For Frank: Jane K. Smith Issue: Whether testimonial references to an accepted offer to take a polygraph amounted to plain error. Holding: Plain error, § 901.03(4), requires “obvious” error, and is reserved for likely violations of basic constitutional right: “Frank identified no basic… Read more
State v. Carlos R. Delgado, 2002 WI App 38 For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate Issue/Holding: ¶11. Under the facts and circumstances of this case, it was incumbent upon defense counsel to police Ortiz’s testimony. This area of the law — what a therapist can and cannot testify to —… Read more
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02 For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate Issue/Holding: Reviewing court may address merits of attack on sentence based on inaccurate information, notwithstanding absence of contemporaneous objection. ¶25. It is appropriate here for the court to overlook waiver, where the state concedes… Read more
State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89 For Davison: Keith A. Findley, UW Law School Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13. The supreme court took review on this threshold issue: “First, does a criminal defendant who pleads guilty to several crimes in a negotiated… Read more
State v. Harold C. Mikkelson, 2002 WI App 152 For Mikkelson: Michael Yovovich, SPD, Madison Appellate Issue: Whether the state waived an appellate argument in opposition to suppression by not raising it at the suppression hearing. Holding: ¶14 “The waiver rule serves several important objectives. Raising issues at the [circuit] court level allows the …. court… Read more
