On Point: 6. Confrontation, 6th Am.

State v. Miguel Muniz-Munoz, 2014AP702-CR, 3/1/16, District 1 (not recommended for publication); case activity (including briefs)

By the time Muniz-Munoz went to trial for first degree intentional homicide, the medical examiner who conducted the autopsy of the victim was dead. The trial court allowed another medical examiner who reviewed the case record to give his independent opinion about the cause of the victim’s death. This did not violate Muniz-Munoz’s right to confrontation.

State v. Anthony R. Owens, 2016 WI App 32; case activity (including briefs)

The circuit court properly admitted the victim’s statements about who shot him under the dying declaration exception to the hearsay rule, and the admission of the victim’s statements didn’t violate the Confrontation Clause.

State v. Rozerick E. Mattox, 2015AP158; District 2, 2/10/2016, certification granted 4/7/16, conviction affirmed, 2017 WI 9, ; case activity (including briefs)

Issue:

Does it violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution for the State to introduce at trial a toxicology report identifying certain drugs in a deceased victim’s system and/or testimony of a medical examiner basing his/her cause-of-death opinion in part on the information set forth in such a report, if the author of the report does not testify and is not otherwise made available for examination by the defendant?

State v. Glenn T. Zamzow, 2016 WI App 7, petition for review granted, 3/7/16, affirmed, 2017 WI 29; case activity (including briefs)

Relying on precedent predating Crawford v. Washington, 541 U.S. 36 (2004), two judges of the court of appeals hold that the Confrontation Clause does not apply to suppression hearings and that the circuit court could rely on hearsay evidence in denying Zamzow’s motion to suppress. The third judge on the panel dissents, arguing the majority’s conclusion “rests upon a shaky foundation” (¶20) and “continues [the] unfortunate legacy” of pre-Crawford Confrontation Clause jurisprudence (¶23).

State v. Davis Kevin Lewis, 2014AP2773-CR, District 1, 12/01/2015 (not recommended for publication); case activity (including briefs)

Lewis (whose first name is itself a matter of dispute, (¶1 n.2)) brings three challenges to his conviction after trial; all are rejected.

State v. Shironski A. Hunter, 2014AP2521-CR, District 1, 9/15/15 (not recommended for publication); case activity (including briefs)

The trial court didn’t err in admitting statements witnesses made during a 911 call and to police at the scene of the crime because the statements were excited utterances. Moreover, the statements weren’t testimonial for Confrontation Clause purposes, so admitting them didn’t violate the defendant’s right to confront the witnesses against him.

Mark D. Jensen v. Marc Clements, 7th Circuit Court of Appeals No. 14-1380, 9/8/15, affirming Jensen v. Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)

At Jensen’s trial for the murder of his wife Julie the State introduced Julie’s handwritten letter to the police, written two weeks before her death, in which she wrote she would never take her life and that her husband should be the suspect if anything should happen to her. The Wisconsin Court of Appeals assumed the admission of the letter violated Jensen’s right to confrontation but found the error harmless. The Seventh Circuit holds that the court of appeals’ decision was an unreasonable application of the Chapman v. California, 386 U.S. 18 (1967), harmless error standard, and that the erroneous admission of the hearsay evidence had a substantial and injurious influence or effect in determining the jury’s verdict, thus satisfying the actual prejudice standard under Brecht v. Abrahamson, 507 U.S. 619 (1993).

Ohio v. Darius Clark, USSC No. 13-1352, 2015 WL 2473372 (June 18, 2015), reversing State v. Clark, 999 N.E.2d 592 ((Ohio 2013); Scotusblog page (including links to briefs and commentary)

A unanimous Supreme Court holds that statements a child made to his teachers about who was physically abusing him were not “testimonial” for purposes of the Confrontation Clause. The Court agrees that the Confrontation Clause may apply (at least in the abstract) to statements made to someone other than a law enforcement officer; however, a majority of the Court says that, in general, statements made to someone who is not a law enforcement officer “are much less likely to be testimonial than statements made to law enforcement officers” and, with regard to children in particular, “[s]tatements made by very young children will rarely, if ever, implicate the Confrontation Clause.” The decision is therefore likely to lead to a more restrictive application of the Confrontation Clause jurisprudence adopted in Crawford v. Washington, 541 U.S. 36 (2004), and thus more frequent admission of out-of-court statements of witnesses.

On June 9th, Professor Jeff Fisher from Stanford’s Supreme Court Litigation Clinic led a day-long workshop for the State Public Defender’s Appellate Division at the law firm of Reinhart Boerner Van Deuren s.c. The workshop focused on strategies for obtaining and opposing review by the United States Supreme Court.  Fisher clerked for Justice Stevens and has argued 27 cases to SCOTUS, including Crawford v. Washington,  Melendez-Diaz v.

State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs

Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.