On Point blog, page 14 of 18
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court of appeals decision (3-judge, not recommended for publication); for Higgins: Ellen Henak, SPD, Milwaukee Appellate; case activity; Higgins BiC; State Resp.; Reply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court of appeals decision (3-judge, not recommended for publication); for Anderson: Angela Conrad Kachelski; Anderson BiC; State Resp.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court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply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.
State v. Olu A. Rhodes, 2009AP25, Wis SCt rev Granted 9/24/10
decision below: unpublished; prior On Point post; for Rhodes: John J. Grau
Issue (from Table of Pending Cases):
Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.
Homicide case, tried on State’s theory Rhodes had motive to kill victim for beating Rhodes’ sister; court of appeals reversed because trial judge cut off cross-examination that Rhodes did not react violently in response to prior harm inflicted by victim on sister.
Harmless Error; Jury View
State v. Jason M. Bruckbauer, 2009AP1823-CR, District 4, 8/19/10
court of appeals decision (3-judge, not recommended for publication); for Bruckbauer: Dennis Schertz; BiC; Resp.; Reply
Harmless Error
Any error in admission of a pretrial ID of Bruckbauer from a photo array was harmless, where: the challenged ID didn’t directly implicate him in the homicide but merely placed him at the scene;
SVP Discharge Procedure: Summary Judgment not Supported
State v. Walter Allison, Jr., 2010 WI App 103; for Allison: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply
Summary judgment in favor of discharge isn’t an available option under § 980.09.
¶18 Applying the principles governing statutory interpretation to Wis. Stat. § 980.09, it is clear that the legislature explicitly prescribed a different procedure from those outlined in Wis.
State v. David R. Knapp, 2009AP1463-CR, District IV, 4/22/10
court of appeals decision (1-judge; not for publication); for Knapp: David M. Helmke; BiC; Resp.
Harmless Error – Prior Conviction
Inadmissible testimony suggestive of a prior conviction (Knapp’s statement upon arrest “that he was going to jail again”) was non-prejudicial: Knapp himself testified he had a prior conviction and nothing in the inadmissible testimony indicated the nature of the prior.