On Point: 46. WI Court of Appeals

State v. Peter Ballos, 230 Wis.2d 495, 602 N.W.2d 117 (Ct. App. 1999)
For Ballos: Robert N. Myeroff.

Issue: Whether the trial court should have ordered production of the state’s witness’s mental health records, for in camera inspection, upon showing that the witness had been hospitalized for depression and was obsessed with bomb-building, and where the theory of defense was that the witness rather than defendant committed the crime.

State v. Curtis M. Agacki, 226 Wis.2d 349, 595 N.W.2d 31 (Ct. App. 1999)
For Agacki: John M. Carroll.

Issue/Holding: Psychotherapist-patient may be abrogated by “dangerous-patient exception” recognized by Schuster v. Altenberg, 144 Wis.2d 223, 424 N.W.2d 159 (1988), and Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976).

State v. Harold Merryfield, 229 Wis.2d 52, 598 N.W.2d 251 (Ct. App. 1999)
For Merryfield: Edward J. Hunt

Holding: Merryfield was originally charged with one felony and one misdemeanor. Pursuant to a plea bargain, he pleaded guilty to the misdemeanor, and the state agreed to drop the felony (but critically, as it turns out, didn’t formally move to dismiss; nor did the trial court formally dismiss it). The case was adjourned for sentencing,

State v. Charles Dante Higgs, 230 Wis.2d 1, 601 N.W.2d 653 (Ct. App. 1999)
For Higgs: Joseph E. Redding

Issue: Whether a sufficient factual basis was established on the element of bodily harm (where the defendant splashed the victim’s face with urine) to support a guilty plea to battery.

Holding: The mere fact that urine struck the victim’s face isn’t enough to establish bodily harm, but the victim’s preliminary hearing testimony that he felt stinging and burning satisfied the element.

State v. Frank J. Kosina, 226 Wis.2d 482, 595 N.W.2d 464 (Ct. App. 1999)
For Kosina: Daniel F. Snyder

Holding: Guilty plea defendant need not be advised of permanent prohibition on firearms possession flowing from 18 USCA §§ 921 & 921, for conviction “of a misdemeanor crime of domestic violence” because it is a collateral consequence of the plea.

State v. David C. Tutlewski, 231 Wis.2d 379, 605 N.W.2d 561 (Ct. App. 1999)
For Tutlewski: Dianne M. Erickson

Issue: Whether one witness’s opinion that state’s witnesses were incapable of lying invaded the jury’s province.

Holding: This testimony violated the rule that one witness may not testify to the credibility of another witness.

The alleged sexual assault victim and her roommate are cognitively disabled.

State v. Rodney G. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (Ct. App. 1999)
For Zivcic: John J. Carter

Holding: The trial court’s discretionary determination to admit expert testimony on the HGN sobriety test is upheld. In particular, specialized knowledge in the “underlying principles” of HGN testing isn’t necessary. All that’s required is expertise in administering and evaluating the test.

State v. Kurt J. Doerr, 229 Wis.2d 616, 599 N.W.2d 897 (Ct. App. 1999)
For Doerr: John M. Carroll

Holding: A preliminary breath test (unlike certain other breath test instruments) requires expert testimony to explain its import:

The PBT device has not been approved by the DOT and does not receive a prima facie presumption of accuracy to establish a defendant’s blood alcohol level. Therefore,

State v. Peter Ballos, 230 Wis.2d 495, 602 N.W.2d 117 (Ct. App. 1999)
For Ballos: Robert N. Myeroff

Issue/Holding:

¶12. Wisconsin case law has not yet clarified whether, or on what basis, 911 calls, tapes, or transcripts may be admissible. Although the precise analysis may vary from case to case or even from call to call depending on the specific facts and circumstances, we see several avenues of admissibility for 911 evidence,

State v. Earl L. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Ct. App. 1999)
For Miller: Eduardo M. Borda

Issue: Whether a prior consistent statement is admissible where the declarant hasn’t been specifically cross-examined about his/her prior statement.

Holding: The requirement in § 908.01(4)(a) that the prior consistent statement declarant be subject to cross-examination concerning the statement requires only the opportunity for cross-examination, and not an actual inquiry into the area.