On Point: j. "Testimonial" Evidence

State v. Daniel D. King, 2005 WI App 224
For King: Scott D. Obernberger

Issue/Holding: An interview by a detective of the victim at a hospital shortly after the charged assault, admitted into evidence as an excited utterance, is deemed “testimonial” (and, therefore, inadmissible under the confrontation clause) because it involved “response(s) to ‘structured police questioning,’” ¶18.

Result seems unassailable in light of Hammon v.

State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding1 [general principles]: The two-part analysis of Ohio v. Roberts, 448 U.S. 56 (1980) survives Crawford for use in determining Confrontation Clause admissibility of nontestimonial statements, ¶¶54-61 (unavailable declarant, and adequate indicia of reliability).

State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73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,

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.

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.

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.”