On Point blog, page 13 of 17
TPR – Evidence – Child’s Mental Health Problems; Prior Voluntary Termination – Harmless Error
Rock County HSD v. Jennifer B., 2011AP1524, District 4, 9/8/11
court of appeals decision (1-judge, not for publication); for Jennifer B.: Gina Frances Bosben; case activity
Evidence of the child’s diagnoses (ADHD; PTSD) was relevant to the main issue in contention, and was not unduly prejudicial, hence was admissible in the grounds phase of the TPR trial.
¶15 The question for the jury was whether there was a substantial likelihood that Jennifer would not “meet the child’s physical,
Fleeing, § 346.04(3): Elements; Instructions, “Law of the Case”: As Measure of State’s Proof – Harmless Error
State v. Courtney C. Beamon, 2011 WI App 131 (recommended for publication); for Beamon: Donna L. Hintze, SPD, Madison Appellate; case activity; petition for review granted, 4/25/12
Fleeing, § 346.04(3) – Elements
¶4 …. In State v. Sterzinger, 2002 WI App 171, ¶9, 256 Wis. 2d 925, 649 N.W.2d 677, this court separated the language of § 346.04(3) into segments: (1) No operator of a vehicle,
Prosecutorial Misconduct – Closing Argument – Harmless Error
State v. Richard K. Numrich, 2010AP1544-CR, District 2, 8/3/11
court of appeals decision (1-judge, not for publication); for Numrich: Chad A. Lanning; case activity
Instances of prosecutorial misconduct (objecting in the jury’s presence to a line of questioning that implied the existence of inadmissible evidence; stating in closing argument that it is defense counsel’s “job to create doubt”) warranted neither mistrial, ¶¶15-16 (especially in light of curative instruction);
Discovery Violation – Harmless Error; Defendant’s Right not to Testify – Evidentiary Hearing
State v. Daniel E. Krueger, 2011AP571-CR, District 3, 8/2/11
court of appeals decision (1-judge, not for publication); for Krueger: Ana Lyn Babcock; case activity
Prosecutorial failure to disclose a police report containing his statements that “were incriminating and any reasonable prosecutor would have planned on using them at trial” violated Krueger’s right to discovery, ¶23, citing State v. DeLao, 2002 WI 49,
TPR – Failure to Assume Parental Responibility; GAL Appointment for Parent; Parent’s GAL: Dispositional Recommendation – Harmless Error
Waukesha County DH&HS v. Jennifer L. H., 2010AP2990, District 2, 7/13/11
court of appeals decision (1-judge, not for publication); for Jennifer L.H.: Suzanne L. Hagopian, SPD, Madison Appellate; case activity
Evidence held sufficient to prove Jennifer’s failure to assume parental responsibility as TPR ground, notwithstanding that she lived with the child and helped raise him from birth until he was removed from her home: “although Jennifer did live with Kurt for most of his life,
Appellate Procedure: Harmless Error (Verdict Forms) – Waiver (Failure to Object to Testimony)
State v. Andre D. Hansbrough, 2011 WI App 79(recommended for publication); for Hansbrough: Amelia L. Bizzaro; case activity
Verdict Forms – Harmless Error
Failure to provide a not guilty verdict option with a lesser included offense instruction is, although error, not structural but is instead subject to analysis for harmlessness, ¶¶10-17.
¶9 At the outset, we reject Hansbrough’s contention that there must always be a not guilty verdict form for each guilty verdict form.
Andre Brown v. Rednour, 7th Cir No. 10-1116, 3/25/11
Habeas Review – Inadmissible Evidence – Harmless Error
Error in jury exposure, during deliberations, to inadmissible police report deemed harmless where the report contained merely cumulative information, the trial court gave a curative instruction, and the evidence against Brown was overwhelming.
The standard on direct appeal for measuring reversible error is the familiar Chapman test, whether the error was harmless beyond a reasonable doubt.
Preservation of Issue: Motion in Limine; Ineffective Assistance: Client’s Failure to Reveal Information to Counsel; Harmless Error Review: Cf. IAC-Prejudice; Evidence: § 905.05 Marital Privilege & 3rd-Party
State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity
Preservation of Issue – Motion in Limine
Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.
Harmless Error; Hearsay – Medical Treatment/Diagnosis
State v. Jimmie Lee Higgins, 2010AP861-CR, District 1, 2/1/11
court of appeals decision (3-judge, not recommended for publication); for Higgins: Ellen Henak, SPD, Milwaukee Appellate; case activity; Higgins BiC; State Resp.; Reply
Any error with respect to exclusion of the victim’s pretrial statement to the police in one instance, and admissibility of her statements to a nurse, would be harmless.
Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias
State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply
Confrontation – Generally
The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,