On Point blog, page 396 of 484
Guilty Pleas – Required Knowledge – Direct and Collateral Consequences – Maximum Punishment
State v. Kenneth V. Harden, 2005 WI App 252
For Harden: Ralph Sczygelski
Issue/Holding: Misinformation with respect to the maximum punishment (defendant was told the maximum was 19 years, 6 months when the correct maximum was 16 years) necessarily renders the guilty plea invalid, without regard to whether the misinformation affected the decision to plead guilty, ¶¶5-6, effectively overruling State v. Paul Delao Quiroz,
“Maday” Examination of Complainant Where State’s Expert Never Conducted Exam
State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs
Issue/Holding: Where the State’s expert witness never interviewed the victim (nor viewed a videotape of the victim’s statement), the defendant wasn’t entitled to a psychological examination of the victim pursuant to State v. Maday, 179 Wis. 2d 346, 359-60, 507 N.W.2d 365 (Ct. App. 1993), ¶27.
Controlled Substance – Sufficiency of Evidence, Proof of Substance — Presumptive and Confirmatory Testing
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding: Proof of the controlled substance is sufficient where a “presumptive” test is followed by a “confirmatory” one (State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997), followed), with the PDR being used to establish the presumption:
¶42 Here,
Evidence – Hearsay – Co-Conspirator’s Statement, § 908.01(4)(b)5.
State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis
Issue/Holding: ¶32, n. 4:
A statement made by a coconspirator in furtherance of the conspiracy is not a hearsay “exception”; it expressly is not hearsay. Wis. Stat. § 908.01(4)(b)5. (2003-04). While hearsay “exemption” is a more appropriate term, statements made under this subsection commonly are analyzed as hearsay and termed hearsay “exceptions.” See,
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.
Videotaped Statements of Children, § 908.08 – Constitutionality
State v. Kevin D. James, 2005 WI App 188
For James: Terry W. Rose
Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request. In effect, the videotape stands as the direct examination,
Rape-Shield, § 972.11 – Semen Swab Not Linked to Defendant
State v. Tyrone Booker, 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue: Whether the trial court erroneously exercised discretion under the rape-shield law, and denied effective cross-examination, by excluding evidence of semen swabs of the alleged sexual assault victim not linked to Booker, where the allegations against him involved touching not intercourse.
Holding:
¶16 … The statute lists three types of evidence that are exceptions to the rape shield law: (1) evidence of the complainant’s past conduct with the defendant;
§ 904.01, Relevance – Consciousness of Guilt: Flight
State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs
Issue/Holding: Evidence of flight is not other-acts evidence but, rather, “an admission by conduct”; thus, evidence that Anderson fled the state after learning that the police had been contacted was admissible, ¶29, citing, State v. Earl L. Miller, 231 Wis.2d 447, 462, 605 N.W.2d 567 (Ct.
§ 940.22(2), Sexual Exploitation by Therapist – Clergy as “Therapist,” Jury Instructions
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller
Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they told the jury that a member of the clergy is a “therapist,” without specifically requiring that Draughon in fact performed therapy:
¶13 Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments.
OWI, § 346.63(1)(am) – Elements, Proof of “Impairment” Not Necessary
State v. Joseph L. Smet, 2005 WI App 263
For Smet: Christopher A. Mutschler
Issue/Holding: Proof of “impairment” is not a necessary element of § 346.63, ¶¶12-16.
Section 346.63(1)(am) (driving under influence of detectable amount of THC, regardless of impairment) is constitutional as against police power, due process, and equal protection attack, ¶¶6.