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Tag Archives: Criminal Procedure

09-4043 U.S. v. Freeman

Criminal Procedure New trials; prosecutorial misconduct Where the government knowingly presented false testimony, the district court properly granted the defendant a new trial. “The comments at issue were made during the rebuttal portion of the government’s closing argument, so there was no opportunity for the defense to counter the statement. And a curative instruction would have had little effect. Indeed, ...

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10-2438 U.S. v. Phillips

Criminal Procedure As-applied vagueness challenges A defendant who pleads guilty without raising an as-applied vagueness challenge in the trial court is barred from raising that issue on appeal. “A guilty plea is more than a mere confession; a defendant who pleads guilty admits not only that he committed the acts described in the indictment but also that he is guilty ...

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09-11121 J.D.B. v. North Carolina

Criminal Procedure Miranda warnings; age A child’s age is relevant to whether he is in custody and Miranda warnings are required. “In some circumstances, a child’s age “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave.” Stansbury, 511 U. S., at 325. Courts can account for that reality without doing ...

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2010AP1620-CR State v. Tackett

Criminal Procedure Right to be present Timothy Tackett appeals from a judgment of conviction of second-degree sexual assault of a child under sixteen and from an order denying his postconviction motion for a new trial. He argues that the trial court erred in communicating with the jury outside his and defense counsel’s presence. The trial court concluded that the error ...

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10-2132 U.S. v. Pittman

Criminal Procedure Vindictive prosecution It was not vindictive prosecution to bring additional charges against a defendant after the court sentenced him to a blow-guideline sentence on the original charges. “[T]he mere fact that the government decided to go forward with prosecuting Pittman does not, in and of itself, indicate that the government’s actions were motivated by animus. While it is ...

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10-2720 U.S. v. O’Doherty

Criminal Procedure Breach of plea agreement Although the PSR reached a much higher loss figure than contemplated by the parties, the government did not breach the plea agreement by agreeing with the higher loss figure. “Our principal difficulty with Mr. O’Doherty’s argument is that it misconstrues the language of the pertinent section of the agreement, and ‘a party’s rights under ...

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09-4055 & 10-1626 U.S. v. Gaya

Criminal Procedure Counsel of choice It did not violate the defendant’s right to counsel of choice to deny a request for new counsel and a continuance after the jury had already been selected. “The circumstances would not have justified granting the request even if a jury hadn’t been picked. Gaya’s lawyer, who was court-appointed, had filed his notice of appearance ...

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2010AP2387-CR State v. Allen

Criminal Procedure Plea withdrawal Elmer Allen pled guilty to armed robbery, party to a crime. The circuit court imposed a bifurcated sentence of thirty years, comprised of eighteen years of initial confinement and twelve years of extended supervision. Allen filed a postconviction motion to withdraw his plea. After an evidentiary hearing at which only Allen testified, the circuit court denied ...

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2010AP425 State v. Starks

Criminal Procedure Successive appeals Tramell E. Starks, pro se, appeals from an order denying his Wis. Stat. § 974.06 motion without a hearing. Starks had alleged that postconviction counsel was ineffective for failing to challenge trial counsel’s performance. The circuit court ruled that Starks had not set forth viable ineffectiveness claims against trial counsel, so the circuit court could not ...

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2010AP370-CR State v. Scott

Criminal Procedure Plea withdrawal; evidentiary hearing Matthew Scott appeals from a judgment convicting him of second-degree sexual assault of a child and from an order denying his postconviction motion seeking to withdraw his guilty plea. We conclude that the circuit court should have held an evidentiary hearing on Scott’s motion to withdraw his plea. Therefore, we reverse the order denying ...

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10-2761 U.S. v. Gustin

Criminal Procedure Entrapment It can not be error for a district judge to permit defense counsel to omit an entrapment defense. “If an entrapment defense offers the best chance of acquittal, its omission could reflect ineffective assistance of counsel, but it could not demonstrate judicial error. Gustin does not contend that his trial lawyer furnished substandard assistance, and at all ...

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2010AP1749-CR State v. Grayer

Criminal Procedure Ineffective assistance Jimmie C. Grayer appeals the judgment entered on a jury verdict finding him guilty of first-degree reckless injury (use of a dangerous weapon), see Wis. Stat. §§ 940.23(1)(a) & 939.63, and from an order denying his motion for postconviction relief. He claims that his trial lawyer gave him constitutionally deficient representation and that the trial court ...

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2010AP1315-CR State v. Davis

Criminal Procedure Ineffective assistance Patrick Kelly Davis appeals from a judgment of conviction entered after a jury found him guilty of robbery by threat or use of force and from the trial court’s order denying his postconviction motion. Davis asserts that he received ineffective assistance of trial counsel. In the alternative, he argues that he is entitled to a new ...

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2010AP843-CR State v. LaFave

Criminal Procedure Miranda warnings Tammi L. LaFave appeals from an amended judgment of conviction for felony murder, as a party to a crime, contrary to Wis. Stat. §§ 940.03 and 939.05 (2007-08), and from an order denying her postconviction motion. LaFave argues that her motion to suppress her statement to detectives should have been granted and that the trial court ...

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09-1498 U.S. v. Tinklenberg

Criminal Procedure Speedy Trial Act 18 U.S.C. 3161(h)(1)(D) stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins. Several considerations, taken together, compel the conclusion that Congress intended subparagraph (D) to apply automatically. First, subparagraph (D) and neighboring subparagraphs (F) and (H)contain ...

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2009AP3186 State v. Burrell

Criminal Procedure Successive appeals Sarah D. Burrell, pro se, appeals from an order denying her sentence modification motion. Because we conclude that her claims are procedurally barred, we affirm. This opinion will not be published. 2009AP3186 State v. Burrell Dist I, Milwaukee County, Konkol, J., Per Curiam Attorneys: For Appellant: Burrell, Sarah D., pro se; For Respondent: Loebel, Karen A., ...

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2010AP987-CR State v. Johnson

Criminal Procedure Out-of-court identifications; self-representation; Confrontation Clause Steven Johnson, pro se, appeals a judgment of conviction entered after a jury found him guilty of robbery by threat of force pursuant to Wis. Stat. § 943.32(1)(b) (2007-08). Johnson sets forth numerous grounds for his appeal, all of which are wholly without merit. For the reasons which follow, we affirm. Not recommended ...

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2010AP1542 State v. Burkart

Criminal Procedure Personal jurisdiction; subject matter jurisdiction Kray Burkart, pro se, appeals a default judgment, convicting him of forfeiture harassment. Burkart alleges the circuit court lacked subject matter and personal jurisdiction, and the complaint violated his constitutional rights. We affirm. This opinion will not be published. 2010AP1542 State v. Burkart Dist III, Marathon County, Brady, J., Brunner, J. Attorneys: For ...

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2010AP1667-CR State v. Keith

Criminal Procedure Ineffective assistance; venue; new trials Crystal P. Keith appeals from an order denying her motion for postconviction relief. Keith was convicted of one count of first-degree reckless homicide for the death of her foster son, Christopher, and one count of physical abuse of a child for the treatment of her foster daughter, C.T. On appeal Keith argues that ...

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09-3479 U.S. v. Boling

Criminal Procedure Closing argument The government’s repeated reference to the defendant as a “career offender” during closing argument does not entitle the defendant to a new trial. “The government’s statements about Boling’s career offender status did not give rise to plain error. We note that the statements were part of a broader discussion of Boling’s past offenses—including the offenses that ...

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09-2516 U.S. v. Sellers

Criminal Procedure Counsel of choice Where the district judge arbitrarily denied a continuance to enable the defendant to retain counsel of his choice, the conviction must be vacated. “The district court also had the duty to consider that Sellers’s new counsel and counsel of choice, Volpe, informed the court that ‘I would be doing a great, great disservice to Mr. ...

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