Smith motion in Wisconsin

2025State v. Hunt, 2014 WI 102, ¶22 , 360 Wis. 2d 576 , 851 N.W.2d 434 . ¶29 Smith testified at the postconviction hearing that his trial counsel erroneously advised him that he could appeal the trial court’s ruling regarding the cell phone mapping evidence—specifically, the trial court’s denial of Smith’s motion for a mistrial—even after entering guilty pleas.

2025State v. Hunt, 2014 WI 102, ¶22 , 360 Wis. 2d 576 , 851 N.W.2d 434 . ¶29 Smith testified at the postconviction hearing that his trial counsel erroneously advised him that he could appeal the trial court’s ruling regarding the cell phone mapping evidence—specifically, the trial court’s denial of Smith’s motion for a mistrial—even after entering guilty pleas.

2019Hill, 240 Wis. 2d 1, ¶12 . ¶16 At the hearing on Smith’s motion to bar retrial, the trial court noted that with regard to the first element of the Copening test—whether the prosecution’s actions were intentional—it was a “close question.” The court observed that when it granted Smith’s motion for a mistrial, it used the phrase “should have known”: the prosecutor should have known that his references to potential defense witnesses were improper in that they inferred that the burden of proof was on the defense; and he should have known that his description of certain “tactics” employed by the pu

2019Hill, 240 Wis. 2d 1, ¶12 . ¶16 At the hearing on Smith’s motion to bar retrial, the trial court noted that with regard to the first element of the Copening test—whether the prosecution’s actions were intentional—it was a “close question.” The court observed that when it granted Smith’s motion for a mistrial, it used the phrase “should have known”: the prosecutor should have known that his references to potential defense witnesses were improper in that they inferred that the burden of proof was on the defense; and he should have known that his description of certain “tactics” employed by the pu

2019Hill, 240 Wis. 2d 1, ¶12 . ¶16 At the hearing on Smith’s motion to bar retrial, the trial court noted that with regard to the first element of the Copening test—whether the prosecution’s actions were intentional—it was a “close question.” The court observed that when it granted Smith’s motion for a mistrial, it used the phrase “should have known”: the prosecutor should have known that his references to potential defense witnesses were improper in that they inferred that the burden of proof was on the defense; and he should have known that his description of certain “tactics” employed by the pu

2019Hill, 240 Wis. 2d 1, ¶12 . ¶16 At the hearing on Smith’s motion to bar retrial, the trial court noted that with regard to the first element of the Copening test—whether the prosecution’s actions were intentional—it was a “close question.” The court observed that when it granted Smith’s motion for a mistrial, it used the phrase “should have known”: the prosecutor should have known that his references to potential defense witnesses were improper in that they inferred that the burden of proof was on the defense; and he should have known that his description of certain “tactics” employed by the pu

2025Smith argues that this misinformation was deficient performance on the part of trial counsel. 10 Nos. 2023AP1063 2023AP1064 2023AP1065 ¶30 To demonstrate deficient performance, a defendant must show that counsel’s performance fell below an “objective standard of reasonableness.” Strickland, 466 U.S. at 688 .

2025After an exhaustive inquiry into Smith’s reasons for wanting his counsel to withdraw and new counsel appointed, the court determined that Smith’s motion was untimely. ¶20 A circuit court’s “decision to not permit an indigent defendant to get a new lawyer will not be overturned when the [r]ecord is devoid of evidence ‘of a conflict that made counsel’s continued representation untenable.’” State v. Boyd, 2011 WI App 25, ¶13 , 331 Wis. 2d 697 , 797 N.W.2d 546 (citation omitted).

2025After an exhaustive inquiry into Smith’s reasons for wanting his counsel to withdraw and new counsel appointed, the court determined that Smith’s motion was untimely. ¶20 A circuit court’s “decision to not permit an indigent defendant to get a new lawyer will not be overturned when the [r]ecord is devoid of evidence ‘of a conflict that made counsel’s continued representation untenable.’” State v. Boyd, 2011 WI App 25, ¶13 , 331 Wis. 2d 697 , 797 N.W.2d 546 (citation omitted).

2025With no such evidence introduced at trial, Dr. Bozovich could not be added to the special verdict form, and therefore, the trial court properly denied Dr. Smith’s motion for a new trial. ¶16 It is well-established that “when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tort-feasors.” Connar v. West Shore Equip. of Milwaukee, Inc., 68 Wis. 2d 42, 44-45 , 227 N.W.2d 660 (1975).

2025With no such evidence introduced at trial, Dr. Bozovich could not be added to the special verdict form, and therefore, the trial court properly denied Dr. Smith’s motion for a new trial. ¶16 It is well-established that “when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tort-feasors.” Connar v. West Shore Equip. of Milwaukee, Inc., 68 Wis. 2d 42, 44-45 , 227 N.W.2d 660 (1975).

2022See Ruffin, 401 Wis. 2d 619, ¶27 ; Spencer, 403 Wis. 2d 86, ¶23 .

2022“It is the appellant’s responsibility to provide a complete record as to all issues [he or she] raises on appeal.” Joseph Hirschberg Revocable Living Tr. v. City of Milwaukee, 2014 WI App 91 , ¶12 n. 5, 356 Wis. 2d 730 , 855 N.W.2d 699 .

2022“It is the appellant’s responsibility to provide a complete record as to all issues [he or she] raises on appeal.” Joseph Hirschberg Revocable Living Tr. v. City of Milwaukee, 2014 WI App 91 , ¶12 n. 5, 356 Wis. 2d 730 , 855 N.W.2d 699 .

2022The circuit court was the “ultimate arbiter of the credibility of the witnesses and the weight to be given to each witness’s testimony.” State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19 , 257 Wis. 2d 421 , 651 N.W.2d 345 (citation omitted).

2022The circuit court was the “ultimate arbiter of the credibility of the witnesses and the weight to be given to each witness’s testimony.” State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19 , 257 Wis. 2d 421 , 651 N.W.2d 345 (citation omitted).

2022“An appellate court’s review is confined to those parts of the record made available to it.” State v. Pettit, 171 Wis. 2d 627, 646 , 492 N.W.2d 633 (Ct. App. 1992). ¶15 In particular, without the transcript from the December 2020 hearing, we are unable to fully assess Smith’s claim that she was not afforded the opportunity to present evidence regarding her objection to the amended accounting before it was accepted by the trial court.

2022“An appellate court’s review is confined to those parts of the record made available to it.” State v. Pettit, 171 Wis. 2d 627, 646 , 492 N.W.2d 633 (Ct. App. 1992). ¶15 In particular, without the transcript from the December 2020 hearing, we are unable to fully assess Smith’s claim that she was not afforded the opportunity to present evidence regarding her objection to the amended accounting before it was accepted by the trial court.

2022State v. Stenzel, 2004 WI App 181, ¶16 , 276 Wis. 2d 224 , 688 N.W.2d 20 . ¶14 We turn to Smith’s claim that his sentence was unduly harsh.

2022State v. Stenzel, 2004 WI App 181, ¶16 , 276 Wis. 2d 224 , 688 N.W.2d 20 . ¶14 We turn to Smith’s claim that his sentence was unduly harsh.

2020Within the Quelle/Smith inquiry, “misleading” is synonymous with “erroneous.” State v. Ludwigson, 212 Wis. 2d 871, 875 , 569 N.W.2d 762 (Ct. App. 1997).

2020Within the Quelle/Smith inquiry, “misleading” is synonymous with “erroneous.” State v. Ludwigson, 212 Wis. 2d 871, 875 , 569 N.W.2d 762 (Ct. App. 1997).

2018STAT. § 805.15 for a new trial in the interest of justice because the real controversy has not been fully tried. 2 See State v. Harp , 161 Wis. 2d 773 , 779, 469 N.W.2d 210 (Ct. App. 1991).

2018STAT. § 805.15 for a new trial in the interest of justice because the real controversy has not been fully tried. 2 See State v. Harp , 161 Wis. 2d 773 , 779, 469 N.W.2d 210 (Ct. App. 1991).

2018In other words, if "a reasonable person would have believed he was free to disregard the police presence and go about his business, there is no seizure and the Fourth Amendment does not apply." State v. Young , 2006 WI 98 , ¶18, 294 Wis. 2d 1 , 717 N.W.2d 729 . ¶12 In reviewing the trial court's denial of Smith's motion to suppress, we apply a two-step standard of review: (1) we first review the trial court's findings of fact, and will uphold them unless they are clearly erroneous; and (2) we then "review the application of constitutional principles to those facts de novo. " See State v. Eason

2018In other words, if "a reasonable person would have believed he was free to disregard the police presence and go about his business, there is no seizure and the Fourth Amendment does not apply." State v. Young , 2006 WI 98 , ¶18, 294 Wis. 2d 1 , 717 N.W.2d 729 . ¶12 In reviewing the trial court's denial of Smith's motion to suppress, we apply a two-step standard of review: (1) we first review the trial court's findings of fact, and will uphold them unless they are clearly erroneous; and (2) we then "review the application of constitutional principles to those facts de novo. " See State v. Eason

2018In other words, if "a reasonable person would have believed he was free to disregard the police presence and go about his business, there is no seizure and the Fourth Amendment does not apply." State v. Young , 2006 WI 98 , ¶18, 294 Wis. 2d 1 , 717 N.W.2d 729 . ¶12 In reviewing the trial court's denial of Smith's motion to suppress, we apply a two-step standard of review: (1) we first review the trial court's findings of fact, and will uphold them unless they are clearly erroneous; and (2) we then "review the application of constitutional principles to those facts de novo. " See State v. Eason

2018In other words, if "a reasonable person would have believed he was free to disregard the police presence and go about his business, there is no seizure and the Fourth Amendment does not apply." State v. Young , 2006 WI 98 , ¶18, 294 Wis. 2d 1 , 717 N.W.2d 729 . ¶12 In reviewing the trial court's denial of Smith's motion to suppress, we apply a two-step standard of review: (1) we first review the trial court's findings of fact, and will uphold them unless they are clearly erroneous; and (2) we then "review the application of constitutional principles to those facts de novo. " See State v. Eason

2018See Rodriguez, 135 S. Ct. at 1615 ; see also, State v. House, 2013 WI App 111, ¶¶6, 9 , 350 Wis. 2d 478 , 837 N.W.2d 645 (concluding the purpose of traffic stop ended when "everything related to the initial stop" had been completed including running a check on defendant's license and returning license to the defendant); State v. Gammons, 2001 WI App 36 , 241 Wis. 2d 296 , 625 N.W.2d 623 (holding the purpose of the traffic stop had concluded after the reason for the initial seizure had been satisfied, the driver and the two passengers had provided identification, and the officer had run compute

2018See Rodriguez, 135 S. Ct. at 1615 ; see also, State v. House, 2013 WI App 111, ¶¶6, 9 , 350 Wis. 2d 478 , 837 N.W.2d 645 (concluding the purpose of traffic stop ended when "everything related to the initial stop" had been completed including running a check on defendant's license and returning license to the defendant); State v. Gammons, 2001 WI App 36 , 241 Wis. 2d 296 , 625 N.W.2d 623 (holding the purpose of the traffic stop had concluded after the reason for the initial seizure had been satisfied, the driver and the two passengers had provided identification, and the officer had run compute

2017In this case, in contrast, the Stuarts were awarded compensation for the damage to their property that came after, and was caused by, the defendants' statutory misrepresentation and common law negligence."). 66 West Bend also relies on Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235 , 593 N.W.2d 445 (1999), for the proposition that an insurance company has no duty to defend an insured when the complaint does not allege property damage.

2017In this case, in contrast, the Stuarts were awarded compensation for the damage to their property that came after, and was caused by, the defendants' statutory misrepresentation and common law negligence."). 66 West Bend also relies on Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235 , 593 N.W.2d 445 (1999), for the proposition that an insurance company has no duty to defend an insured when the complaint does not allege property damage.

2016In State v. Byrge, 2000 WI 101 , 237 Wis. 2d 197 , 614 N.W.2d 477 , the court held that a circuit court's findings regarding competency to stand trial "will not be upset unless they are clearly erroneous because a competency hearing presents a unique category of inquiry in which the circuit court is in the best position to apply the law to the facts." Byrge, 237 Wis. 2d 197, ¶ 4 .

2016In State v. Byrge, 2000 WI 101 , 237 Wis. 2d 197 , 614 N.W.2d 477 , the court held that a circuit court's findings regarding competency to stand trial "will not be upset unless they are clearly erroneous because a competency hearing presents a unique category of inquiry in which the circuit court is in the best position to apply the law to the facts." Byrge, 237 Wis. 2d 197, ¶ 4 .