On Point blog, page 10 of 10
Confrontation – Hearsay: Former Testimony, Preliminary Hearing
State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73
For Stuart: Christopher W. Rose
Issue: Whether the preliminary hearing testimony of a witness (“John”) – unavailable at trial after refusing to testify at that stage – was admissible under the confrontation clause,
Confrontation – Certified Medical Records
State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding1: The confrontation clause doesn’t prohibit a witness from reading to the jury admissible medical records:
¶13 First, as we have seen, the certified medical records were received by the trial court without objection. Certainly, the jurors could have read the pertinent excerpts, and, also, the prosecutor or defense counsel could have read to the jury excerpts from those records.
Confrontation – Coconspirator’s Statement “Non-Testimonial” – Reliable under Ohio v. Roberts
State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis
Issue/Holding1: Statement of coconspirator during drug transaction, conveyed to jury via police informant buying drugs as part of controlled buy, not “testimonial”:
¶25 We do not think an objective witness would reasonably believe that Vongrasamy would have thought his informal telephone conversation with his roommate would be available for use at a later trial.
Confrontation – Hearsay – Recent Perception / Excited Utterance (- & Statement Not Admitted For Its Truth)
State v. Donavin Hemphill, 2005 WI App 248
N.B. The holding quoted below was overruled, in State v. Mark D. Jensen, 2007 WI 26, ¶24n. 8. In other words, “a spontaneous statement to a police officer” is not, as a matter of law, non-testimonial.
For Hemphill: Jeffrey Jensen
Issue/Holding: An out-of-court statement by a witness to police (responding to a report of “trouble” involving a “subject with a gun”) which pointed out the defendant (“Those are the ones.
Confrontation – Hearsay – Impeachment as Exception to Crawford / § 908.06 – Admissibility of Hearsay Statement to Attack Credibility of Declarant
State v. Jermaine Smith, 2005 WI App 152, PFR filed
For Smith: Glen B. Kulkoski
Issue: Whether a co-actor’s in-custody pretrial statements were admissible as impeachment on rebuttal after the defense introduced a different hearsay statement by that declarant.
Holding:
¶10 The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis. Stat. § 908.06 ….
¶11 A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant.
Confrontation – Hearsay: Penal-Interest Statement, § 908.045(4) — Statement to Prison Cell-Mate / Non-Custodial Statement to Police
State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski
Issue/Holding: Confessions to fellow inmates are sufficiently reliable to allow admissibility without confrontation.
Issue/Holding: The codefendant’s (defendant’s brother) against-penal-interest statement to the police didn’t violate the confrontation clause, where the declarant “was not in custody and there is no indication he was threatened with prosecution or asked leading questions.”
Confrontation – Hearsay: Social Interest Exception, Particularized Guarantees of Trustworthiness
State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, habeas relief granted, Edward A. Murillo v. Frank, 402 F3d 786 (7th Cir. 2005)
For Murillo: Craig Albee
Issue: Whether a statement implicating defendant in a homicide and made by his brother and fellow gang member while in police custody satisfied the against-social-interest hearsay exception,