On Point blog, page 13 of 17
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court of appeals decision (1-judge, not for publication); for Krueger: Ana Lyn Babcock; case activity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court of appeals decision (1-judge, not for publication); for Jennifer L.H.: Suzanne L. Hagopian, SPD, Madison Appellate; case activity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,
Miranda – Impeachment – Harmless Error
State v. Marlon M. Anderson, 2010AP742-CR, District 1/4, 12/9/10
court of appeals decision (3-judge, not recommended for publication); for Anderson: Angela Conrad Kachelski; Anderson BiC; State Resp.
A defendant’s statement made voluntarily but in violation of Miranda isn’t admissible in the State’s case-in-chief, but is admissible if the defendant testifies and the statement is inconsistent with his testimony. The question raised here relates to how such inconsistency is measured: whether outright contradictions are necessary,
Curative Instruction; Theft by Fraud – Sufficiency of Proof
State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply
Curative Instruction
Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.
¶11 Not all errors warrant a mistrial,
TPR – Right to Counsel – Violation, Structural Error
State v. Darrell K., 2010AP1910, District 1, 10/19/10
court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee
Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.
¶10 The Wisconsin Supreme Court ruled that the trial court erred in dismissing Shirley’s attorney and in finding Shirley in default when she was unrepresented throughout the hearings.