On Point: 46. WI Court of Appeals

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue: Whether a homicide victim’s statement – “If I am not home in half an hour come looking for me” – was a hearsay “statement,” as defined in § 908.01(1), i.e., offered for the truth of the matter asserted.
Holding:

¶36. There is no dispute that an out-of-court instruction to do something is not hearsay when offered to prove that the instruction was given and,

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue: Whether the declarant’s statement to another relating a threat by the defendant was admissible as an excited utterance, § 908.03(2).

Holding:

¶65. We agree with the State that the first two elements of this exception are met: Daniel’s threat to Elizabeth is a startling event and her statement to Bobholz certainly relates to it.

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue: Whether statements made by the declarant to others describing various threats made by the defendant were admissible under the state-of-mind hearsay exception, § 908.03(3).

Holding:

¶60                        Since there are no Wisconsin cases that have resolved this issue, we look to federal cases for guidance in applying the same rule. 

State v. Robert L. Snider, 2003 WI App 172, PFR filed 8/22/03
For Snider: Timothy J. Gaskell

Issue: Whether a child-victim’s videotaped statement must satisfy all the conditions in § 908.08, or may instead satisfy the residual exception.

Holding:

¶12. We agree with the State that the plain language of Wis. Stat. § 908.08(7) permits the admission of a child’s videotaped statement under any applicable hearsay exception regardless of whether the requirements of subsections (2) and (3) have been met. 

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue/Holding1:

¶51. The recent perception exception is similar to the hearsay exceptions for present sense impression and excited utterances, but was intended to allow more time between the observation of the event and the statement in cases where the declarant is unavailable and the evidence would otherwise be lost.

State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry

Issue/Holding:

¶43. Wright argues that Lomack’s testimony was relevant on the issue of whether the police lineup was suggestive. In assessing relevance, the trial court must determine whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning

Issue/Holding:

¶29 …. Silva’s brother testified that on the day of the assault Silva attended a service that discussed the act of “sinning again.” Silva’s brother stated that Silva sat down during the discussion while everyone else remained standing. This behavior is consistent with the conduct of a person who has recently committed a crime and is admissible as such.

State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper

Issue/Holding: Greater statutory double jeopardy protection afforded drug prosecution under § 961.45 than non-drug prosecution under § 939.71 doesn’t violate equal protection:

¶55. We note that while Wis. Stat. § 939.71 adheres to the dual sovereignty doctrine, Wis. Stat. § 961.45 does not. We therefore conclude, as the supreme court did in Petty,

State v. Gary M.B., 2003 WI App 72, affirmed on other grounds, 2004 WI 33
For Gary M.B.: T. Christopher Kelly

Issue/Holding: A court of appeals holding in a case reversed by the supreme court on other grounds, so that this holding was neither “overruled, withdrawn, or modified,” continues to bind the court of appeals. ¶13.

The court of appeals had held under similar circumstances to Gary M.B.’s that defensive use didn’t trigger waiver, 

State v. Frederick Robertson, 2003 WI App 84
For Robertson: Jefren Olsen, SPD, Madison Appellate

Issue/Holding: Where principal issue concerned the complainant’s credibility, indication first revealed after conviction that she had been treated for depression with psychotic features around the time of the incident required in camera inspection to determine whether her mental health records must be disclosed to the defense.

This case arrives at the unmapped intersection of postconviction discovery and privileged records.