On Point blog, page 456 of 484
Hearsay – Prior Consistent Statement, § 908.01(4)(a)2
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether the alleged victim’s entire testimony at prior proceedings was properly admitted into evidence, under prior consistent statement or rule of completeness rationales.
Holding:
¶25. The trial court admitted the entire prior testimony under two theories: (1) the testimony constituted prior consistent statements under Wis. Stat.
Discovery – Witness List Violation
State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney
Issue: Whether the trial court properly excluded a defense witness who had not been timely named as a witness.
Holding:
¶22 The record supports the trial court’s discretionary decision to exclude Rosado’s testimony. Guzman was aware of this witness from the date of the incident.
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,
Assessment of Pre-Existing Information not “Newly Discovered” — Sexually Violent Persons Proceeding
State v. Daniel Williams, 2001 WI App 155
For Williams: Adrienne M. Moore, SPD, Racine Trial
Issue: Whether the grant of a petition for supervised release (§ 980.08) can be vacated on the basis of a periodic re-examination report (§ 980.07) which is a mere assessment of the same information utilized during the supervised release proceeding.
Holding: A motion for relief from judgment, § 980.07,
§ 904.01, Relevance – Demonstrative Evidence
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a witness should have been permitted to demonstrate with a doll the force used to cause injuries to the child victim.
Holding: The fact that the experts couldn’t agree on the exact cause of the injuries goes to weight, not admissibility, of the demonstration.
Double Jeopardy – Multiplicity: Sexual Assault — Distinct Intrusions
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.
Holding:
¶59 There is another reason Koller’s second multiplicity challenge fails. This second claim is directed primarily at the relationship between Count 4 (mouth-to-vagina contact), on the one hand, and Counts 3 and 5 (penis-to-vagina intercourse),
SVP – Trial: Expert Witnesses – Psychologist: Licensure
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether a psychologist must be licensed in Wisconsin to provide expert opinion in a Ch. 980 proceeding.
Holding: No: “the standard for determining the admissibility of expert testimony in this case is the general one, namely, whether it will be helpful to the trier of fact, so long as the expert is qualified by knowledge,
SVP – Postdisposition: Supervised Release – Revocation – Uncharged Rule Violation – Right to Notice
State v. Keith Alan VanBronkhorst, 2001 WI App 190
For VanBronkhorst: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether revocation of supervised release from a ch. 980 commitment was properly based on an uncharged rule violation.
Holding:
¶9 … “(P)rocedural due process protections afforded in probation or parole revocation proceedings apply to supervised release revocation proceedings under ch. 980. “…¶15. Notice to comply with due process requirements must be given sufficiently in advance of scheduled court proceedings so that a defendant will have a reasonable opportunity to prepare.
SVP – Postdisposition – Right to independent expert
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the commitment subject has a right to present an independent medical report at a petition for discharge probable cause hearing, § 980.09(2)(a).
Holding: Although a Ch. 980 patient does have the right submit an independent medical report to the court, ¶¶6-13, Wis Stat..
Waiver of Appeal — Arguably Meritorious Appellate Issue that Would Have Incurred Risk
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue/Holding: Given circuit court findings “that Ford affirmatively elected not to pursue any issue that would result in the withdrawal of his plea and the possible reinstatement of a second sexual assault charge,” he is deemed to have knowingly and voluntarily waived his right to pursue a postconviction challenge to his guilty plea;