On Point blog, page 482 of 484
Domestic Abuse, § 813.12(1) — “Household Member”
Annette Petrowsky v. Brad Krause, 223 Wis. 2d 32, 588 N.W.2d 318 (Ct. App. 1998)
For Krause: Russell D. Bohach
For Petrowsky: Thomas McAdams, Pro Bono Project
Issue/Holding:
The issue on appeal is who constitutes a “household member” under the domestic abuse statute. This involves the construction of a statute. Interpretation of a statute is a question of law that appellate courts review without deference to the trial court.
Gambling, § 945.03(5) — Constitutionality — Vagueness Challenge
State v. Lester E. Hahn, 221 Wis. 2d 670, 586 N.W.2d 5 (Ct. App. 1998)
For Hahn: Bruce Elbert
Issue/Holding: The meaning of “gambling machine” is sufficiently well-understood as to survive a vagueness challenge. (The court reserves whether “contrivance” might be vague when applied to facts not raised by this case.)
Gambling, § 945.03(5) — Sufficiency of Evidence — Expert Testimony Unnecessary
State v. Lester E. Hahn, 221 Wis. 2d 670, 586 N.W.2d 5 (Ct. App. 1998)
For Hahn: Bruce Elbert
Issue/Holding:
We reject Hahn’s argument that expert testimony was necessary to establish that these video poker machines were gambling machines. Although Hahn refers to cases from other jurisdictions in which technical aspects of the machines’ functions were at issue, he does not relate those cases to any disputed issue here.
§ 902.01(2), Judicial Notice — Reliance on, Ruling to Admit Evidence
State v. William R. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998)
For Peterson: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
A trial court sitting as fact-finder6 may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute,7 but it may not establish as an adjudicative fact that which is known to the judge as an individual.
§ 904.01, Relevance – “Profile Character” (Richard A.P.) Evidence (Absence of Sex Offender Characteristics)
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998)
For Richard: Robert Henak
Holding: The trial court reversibly erred in refusing to allow an expert psychologist to testify that defendant “did not show any evidence of any diagnosable sexual disorder. … [and] that absent a diagnosable disorder, it is unlikely that such a person would molest a child.”
This evidence was relevant: “[Psychologist] Lodl’s testimony may well have assisted the jury in determining whether Richard,
Impeachment — Witness’s Mental Condition
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998).
For Richard: Robert Henak.
Issue/Holding: Diagnosis of multiple personality disorder, to impeach witness: evidence of mental impairment does not, without more, affect witness’s credibility. Without evidence that this condition affected the witness’s recall ability, it is irrelevant.
Hearsay — Statement — Truth of Matter Asserted — Probative Value
State v. Michael A. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998)
For Sveum: Robert T. Ruth
Issue/Holding: Where the defendant sought admissibility of a statement by a non-testifying declarant on the basis that it was not offered for its truthfulness, but the statement would have probative value only if offered for truth of the matter asserted, it was inadmissible hearsay.
Foundation — Videotape — Same Requirement as Still Photo — Expert Unnecessary
State v. William R. Peterson, 222 Wis. 2d 449, 588 N.W.2d 84 (Ct. App. 1998)
For Peterson: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
The State provides no authority to support the trial court’s imposition of a requirement that, as a matter of law, expert testimony is necessary to establish a foundation for video images, and we are aware of none. Wisconsin case law does not impose such a requirement for the admission of still photographs.
Authentication — Voice on Tape
State v. Gary Curtis, 218 Wis. 2d 550, 582 N.W.2d 409 (Ct. App. 1998)
For Curtis: Arthur B. Nathan
Issue/Holding:
Next, Curtis claims that the tapes admitted into evidence at trial were not properly authenticated. At trial, Poivey, a party to the conversations on the tapes, testified that the voices on the tapes were his and Curtis’. This type of voice identification is a valid avenue of authentication.
Presentence Report – Conflict of Interest – Author Married to Defendant’s Prosecutor — Showing Actual Bias not Required – Remedy (Strike PSI) / Harm (Must Show Unfair Influence over Sentencing Process)
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
Requiring any defendant to demonstrate that the marital relationship actually influenced the writer’s impressions and recommendations would present an insurmountable hurdle to any defendant attempting to challenge a PSI. The reasons for an agent’s impression may operate at a subjective level of which the report’s author is unaware.