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Case Digests

01-0584 State v. Lemke

Dale J. Lemke appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI). Lemke contends that the investigative stop of his vehicle was illegal under Terry v. Ohio, 392 U.S. 1 (1968), and Wis. Stat. sec. 968.24. Affirmed. This opinion will not be published. Dist II, Calumet County, Poppy, J., Nettesheim, P.J. Attorneys: For Appellant: Chad ...

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00-3084 State v. Tulley

“Because the three prospective jurors with whom the court spoke in camera did not serve on the jury, we conclude that the State has met its burden to show that there is no reasonable possibility that the court’s error contributed to Tulley’s conviction. Therefore, we conclude that the circuit court’s in camera interview of three prospective jurors, though error, was ...

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01-0578-CR State v. Yench

Leroy A. Yench appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), second offense. Yench pled guilty to the charge following the trial court’s denial of his motion to suppress evidence of a blood test obtained pursuant to the Implied Consent Law. On appeal, Yench contends that the arresting officer did not exercise “reasonable diligence” ...

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00-2916 State v. Davis

“Therefore, we reverse the order of the trial court denying the State’s motion to compel Glenn E. Davis to submit to a reciprocal psychological examination and remand to the trial court to conduct further proceedings consistent with this opinion. … “A defendant who intends to present Richard A.P. [See, State v. Richard A.P., 223 Wis.2d 777 (Ct. App. 1988)] evidence ...

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00-2914 State v. Krause

James D. Krause appeals pro se from an order denying his postconviction motions for sentence modification and for a restitution hearing. Krause argues that the trial court failed to articulate adequate grounds for denying the motions without a hearing. We agree and reverse the order and remand for further proceedings. This opinion will not be published. Dist II, Walworth County, ...

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00-1825 Bicknese v. Sutula, et al.

Alma Bicknese appeals from a postverdict judgment dismissing her claims against Thomas Sutula for promissory estoppel and intentional misrepresentation. After the jury found in favor of Bicknese on the estoppel claim, the trial court entered judgment notwithstanding the verdict and dismissed Bicknese’s claims, agreeing with Sutula that he was immune from personal liability as a public employee. Bicknese argues that ...

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00-2783 State v. Ward

Jeffrey Ward appeals an order denying his Wis. Stat. sec. 974.06 (1999-2000) postconviction motion in which he alleged that his 12-year sentence was excessive and his postconviction counsel was ineffective for not challenging the sentence. Because the trial court properly exercised its sentencing discretion and Ward can establish neither deficient performance nor prejudice from his counsel’s failure to challenge the ...

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00-2041 Integrity Mutual Insurance Company v. Labor and Industry Review Commission, et al.

Integrity Mutual Insurance Company (Integrity) appeals from an order affirming a Labor and Industry Review Commission (LIRC) decision. That decision awarded penalties totaling $8,278 for bad faith and inexcusable delay in handling Donald Baysinger’s worker’s compensation claim. The issues are whether we owe deference to LIRC’s decision, whether LIRC’s application of the law to the undisputed facts is sustainable, and ...

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00-2318 In Re the Commitment of Jack R. Martinsen: State v. Martinsen

Jack Martinsen appeals an order denying his petition for supervised release from his Wis. Stat. ch. 980 commitment. He argues that the trial court deprived him of a full and fair hearing when it refused to compel the special prosecutor to answer interrogatories concerning polygraph and plethysmograph tests conducted at the Wisconsin Resource Center. The trial court concluded that the ...

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00-2502 In Re the Marriage of: Spielman v. Spielman

In this postdivorce proceeding, Jeffrey Spielman appeals an order granting Donna Spielman’s motion to modify maintenance. He argues that the court was without authority to modify maintenance because the original maintenance term had expired. He also argues that the court erroneously exercised its discretion by modifying maintenance because “[t]he factual basis for modifying the existing Order was not fully tried,” ...

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00-2902 In re: Dennis E. Carlson, Debtor

“The Bankruptcy Code requires the debtor to list as assets of the estate in bankruptcy ‘all legal or equitable interests of the debtor in property as of the commencement of the case.’ 11 U.S.C. sec. 541(a). The term ‘legal or equitable interests … in property’ has been broadly interpreted to include any legally enforceable right. …, except (so far as ...

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00-2940 Pederson v. Anibas

Jerry Anibas appeals a judgment awarding Linda Pederson $39,500 on her unjust enrichment claim. He argues that the trial court’s findings were clearly erroneous. He further argues that the trial court erroneously included certain assets and refused to address his claim for offset, replevin and conversion. Because the record supports the court’s determination, we reject his arguments and affirm the ...

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00-3164, 00-3183, 00-3262, 00-3285, 00-3290, 00-3291, 00-3292, 00-3293, 00-3302, 00-3303 & 01-2000 In the Matter of: Synthroid Marketing Litigation

“The district judge defined megafunds as settlements of $75 million and up. Fees in ‘megafund’ cases should be capped at 10% of the recovery, the judge held, although she recognized that fees of 30% and more are common and proper in smaller cases. This means that counsel for the consumer class could have received $22 million in fees had they ...

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01-0330-FT Walsh Apartments LLC v. Mac-Gray Co. Inc.

Mac-Gray Co. Inc. appeals an order which granted Walsh Apartments LLC, a writ of restitution evicting Mac-Gray from its occupancy of the laundry rooms in Walsh’s apartment complex. Mac-Gray had leased the laundry rooms from the former owner of the apartments, and it claims the trial court erred in restoring the premises to Walsh because Walsh became bound on the ...

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99-3789 Stutler v. Illinois Department of Corrections

“Taking the facts in the light most favorable to Stutler, we conclude that no reasonable jury could find that the conduct endured by Stutler was severe enough to rise to the level of an adverse employment action. Rockett’s conduct after Stutler reported her in May 1996 consisted of: 1) sending an e-mail … characterizing Stutler’s behavior as ‘bizarre’ and stating ...

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00-2630 Pulver, et al. v. Jennings, et al.

Melvin Pulver appeals the judgment entered upon a jury verdict awarding him $9,153 damages plus costs and interest for injuries he sustained in a three-car automobile accident. Pulver contends he is entitled to a new trial because: (1) the jury’s findings on negligence and the apportionment of negligence were the result of passion, prejudice and perversity, and were erroneous as ...

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99-2710 Frazier v. Delco Electronics Corporation

“[T]here is no evidence that Spears had a sexual or romantic interest in Frazier, though that is possible. But many cases of sexual harassment involve hostility to female coworkers because they are female. Sometimes it is because the men feel that their macho workplace has been ‘invaded’ by women, whose presence damages the self-esteem that the men derive from thinking ...

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00-3373-CR State v. Booth

Kevin Booth, pro se, appeals his judgment of conviction for attempted second-degree sexual assault with a person who the defendant knows is unconscious and an order denying postconviction relief. Booth argues that: (1) he was denied his Sixth Amendment right to counsel at the preliminary hearing; and (2) his trial counsel was ineffective. Because Booth waived his right to object ...

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00-2603 Alexander v. Wisconsin Department of Health and Family Services, et al.

“Alexander has presented no evidence from which it can be inferred that the defendants’ stated reason for his termination was a pretext for discrimination. Gruchow explained to Moritz that despite the fact that he had been careful not to relay any of the specific details of the alleged gesture to Alexander when he spoke with him on October 24, Alexander ...

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01-0505 State v. Collette

Andrew B. Collette appeals pro se from a judgment of conviction and an order denying postconviction relief. In his pro se postconviction motion, Collette contended that his postconviction counsel was ineffective, that the sentencing violated his double jeopardy protection and that the plea agreement was unconstitutional. We affirm the postconviction order. This opinion will not be published. Dist II, Racine ...

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01-2989 Henderson v. U.S.

“Henderson’s first motion was not a section 2255 motion as such; it is deemed a section 2255 motion as a result of the rule adopted in Evans and other cases… Nothing in AEDPA says that a motion not labeled as a section 2255 motion shall nevertheless be deemed one if it could have been so labeled accurately. This is a ...

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00-2734-CR State v. Bryant

Sirvictor Bryant appeals from a judgment convicting him of possessing cocaine with intent to deliver it and three misdemeanors. The issues are whether the trial court erred by allowing the State to present certain testimony at his trial and by denying him relief on a claim of newly discovered evidence. We affirm. This opinion will not be published. Dist I, ...

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00-2091 Whitehead v. Cowan

“Whitehead argues that his right to a fair and impartial jury was violated because a local newspaper published the names and addresses of the jurors. Indeed, the Supreme Court has found that publication of juror names and addresses can contribute to the deprivation of a fair trial. See Sheppard v. Maxwell, 384 U.S. 333 (1966). Sheppard, like Estes and Rideau, ...

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00-1868 In Re: the Marriage of Sandra Lynn Modrow v. Kim Modrow

Although a husband’s incarceration may be considered in determining child support obligations, the trial court appropriately observed that the husband’s incarceration was the result of his voluntary choice to operate a motor vehicle while intoxicated despite four previous OWI arrests, and the court noted that if the husband was unsuccessful in obtaining employment, he could petition the court for modification. ...

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00-2558-CR State v. Obriecht

Andrew Obriecht appeals a judgment convicting him of one count of attempted second-degree sexual assault of a child, five counts of fourth-degree sexual assault and one count of disorderly conduct, all as a repeat offender. The issue is whether the trial court properly exercised its discretion in limiting questioning by Obriecht’s counsel during jury selection. We conclude that the trial ...

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00-2744 U.S. v. Xiong

“Reading the statements in context … we conclude that the prosecutor did not disparage defense counsel’s character. In his closing argument, defense counsel argued that the government suffered from tunnel vision and put on perjured testimony. The prosecutor responded by stating that counsel resorted to a government conspiracy argument despite the earlier promise. This response went to the credibility of ...

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00-1913 In Re: the Annexation of the Smith Property v. City of LaCrosse

The property of the city meets the annexed properties at the center of the riverbed of the Black River and the annexed properties are, therefore, “contiguous” to the city within the meaning of Wis. Stat. sec. 66.021(2). “We find no authority for the proposition that a river running over the point of contact renders properties non-contiguous, and there is nothing ...

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00-2552-CR, 00-2553-CR State v. Applebee

Lucas Applebee appeals from judgments convicting him of one count of possession of THC with intent to deliver and one count of criminal damage to property. The issues are: (1) whether Applebee’s confession was voluntary; and (2) whether the trial court misused its discretion in sentencing Applebee. We affirm. This opinion will not be published. Dist IV, Crawford County, Kirchman, ...

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99-3577 U.S. v. Oreye

“The judge did not deny Oreye the assistance of counsel. On the contrary, he tried to persuade him to stick with Shanin. His fault if there is one was not going into sufficient detail about the perils of self-representation. We’re not sure it was a fault, or at least a serious, a fatal, fault, because if he had dwelled on ...

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00-3513 Walag v. Wisconsin Department of Administration

“With respect to transportation, the Department … found that ‘the road system is geared more towards linking the area to external locations than it is to provide internal movement. In fact, the roads seem designed to prevent internal travel.’ In support of its finding, the Department cited to its observations that some internal roads are very narrow and the gravel ...

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