On Point blog, page 34 of 49
Evidence Excluded from Case-in-Chief for Discovery Violation Admissible on Rebuttal; Appellate Review: Omitted Transcript Presumed to Support Discretionary Trial Court Ruling; Sleeping Juror
State v. Brent T. Novy, 2012 WI App 10 (recommended for publication), petition for review granted, 6/13/12; for Novy: Joseph George Easton; case activity
Rebuttal – Evidence Excluded from Case-in-Chief for Discovery Violation
Expert witness testimony, excluded from the State’s case-in-chief as a sanction failure to identify the witness during discovery, was admissible on rebuttal to attack the defendant’s testimony after he testified.
Traffic Stop – Duration
State v. John R. Nelson, 2011AP125-CR, District 2, 12/7/11
court of appeals decision (1-judge, not for publication); for Nelson: John A. Nelson; case activity
The officer’s observation that Nelson’s vehicle intruded “somewhat into the intersection” before stopping provided reasonable suspicion for a stop-sign violation, § 346.46(1). The stop wasn’t unnecessarily prolonged by summoning a drug dog while the officer ran record checks and issued a warning ticket.
State v. Roshawn Smith, 2010AP1192-CR, rev. granted 12/1/11
on review of unpublished decision; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity; prior post
Sufficiency of Evidence (Possession with Intent to Deliver) – Circumstantial Evidence Standard of Review /
Stipulation (Offense Element) – Right to Jury Trial
Issues (from Smith’s PFR):
1. The Trial Evidence Was Insufficient to Support Smith’s Conviction of Possessing a Controlled Substance (THC) With Intent to Deliver,
Discovery Violation, § 971.23(1)(g) – Prejudice
State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11
court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity
The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted first-degree intentional homicide: 1. the erroneously admitted trajectory rod evidence “severely undermined”
Interest-of-Justice Review: Post-Trial Revelations Undermining State’s Witnesses
State v. Kenneth M. Davis, 2011 WI App 147 (recommended for publication); for Davis: Robert R. Henak; case activity; reissuance after prior decision withdrawn
Several items of testimony, coming to light after trial, directly contradict the trial testimony of the main State’s witnesses, leading the court to conclude that the real issue in controversy – Davis’s alleged involvement in a drug-house robbery and murder of an occupant –
Newly Discovered Evidence: New Forensic Method, Photogrammetric Analysis; Interest-of-Justice Review
State v. Brian K. Avery, 2011 WI App 148 (recommended for publication), supreme court review granted, 2/23/12; for Avery: Keith A. Findley; case activity; prior 974.06 appeal: 2008AP500-CR; direct appeal: 1997AP317
Newly Discovered Evidence – New Forensic Method – Photogrammetric Analysis
Expert photogrammetric opinion, derived from video enhancement technology (“VISAR”) not commercially available until after Avery’s trial,
Sexual Assault; Charging Document; Excited Utterances; Newly Discovered Evidence
State v. Dion M. Echols, 2010AP2626-CR, District 1, 9/27/11
court of appeals decision (not recommended for publication); for Echols: Amelia L. Bizzaro; case activity
Evidence held sufficient to establish “great bodily harm” element of 1st-degree sexual assault, § 940.225(1)(a), where the harm was inflicted a short time after the assault.
¶23 In this case, the trial court properly determined that Echols’ shooting M.F. subsequent to the nonconsensual sexual contact constituted great bodily harm.
Terry Stop, Compared with Arrest
State v. Daniel R. Doyle, 2010AP2466-CR, District 4, 9/22/11
court of appeals decision (1-judge, not for publication); for Doyle: John C. Orth; case activity
Transport of drunk driving suspect 3-4 miles to local police station for purpose of administering field sobriety tests didn’t covert Terry stop into arrest, given that extreme, adverse weather conditions rendered impractical such testing at the scene.
¶11 Terry is codified in Wis.
Roselva Chaidez v. U.S., 7th Cir No. 10-3623, 8/23/11
seventh circuit court of appeals decision; cert granted, 4/30/12
Padilla v. Kentucky: Retroactivity – Habeas Review
The holding of Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), that as in incident of effective representation, “counsel must inform her client whether his plea carries a risk of deportation,” is a “new rule”
Confrontation – Limits on Cross-Examination
State v. Olu A. Rhodes, 2011 WI 73, reversing unpublished COA decision; for Rhodes: John J. Grau; case activity
Although the State’s theory of motive was that Rhodes intentionally shot and killed the victim in retaliation for beating Rhodes’ sister the day before, the trial court reasonably precluded cross-examination of the sister on a prior instance where the victim severely beat her without response from Rhodes.