On Point blog, page 207 of 215
Hearsay – 911 Call
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,
Prior Consistent Statement, § 908.01(4)(a)2
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.
Hearsay – “Residual” Exception, § 908.45(6)
State v. Liliana Petrovic, 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999)
For Petrovic: Robert B. Rondini
Holding: While executing a search warrant at Petrovic’s home, a detective talked to her 5-year old daughter, who gave him information about 39 marijuana plants growing outside. She ended up being tried with and convicted of manufacturing THC. Petrovic challenges admissibility of daughter’s hearsay statements to the detective, and to evidence showing her affiliation with the Outlaws motorcycle gang.
Trial Court Finding that Proffered Newly Discovered Evidence “Incredible”
State v. Robert Carnemolla, 229 Wis.2d 648, 600 N.W.2d 236 (Ct. App. 1999)
For Carnemolla: Robert T. Ruth
Issue/Holding: No error found in trial court’s credibility-bound denial of new trial based on newly discovered evidence claim:
In the instant case, the trial court found Sautier to be “incredible.” It also found “that a jury would [not] find []his testimony credible.” Under McCallum,
Due Process – Exculpatory Evidence – prosecution witness’s understating number of prior convictions – harmless error
State v. Robert Carnemolla, 229 Wis.2d 648, 600 N.W.2d 236 (Ct. App. 1999)
For Carnemolla: Robert T. Ruth
Holding: A state’s witness testified that he had two priors, when in fact he had three. The court finds any error harmless, stressing that the witness was a prison inmate and testified in prison clothes – therefore the jury necessarily knew in any event that he’d been convicted of a serious crime.
SVP – Pretrial – Probable Cause Hearing – Timeliness
State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999)
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate
Issue: Whether the probable cause hearing was held within 72 hours of filing of the Ch. 980 petition, as required by § 980.04(2).
Holding: The trial court’s finding that the hearing was held within 72 hours of filing, exclusive of the weekend, is not clearly erroneous.
SVP – Trial – Evidence: Prediction of Future Dangerousness of Juveniles
State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999)
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate.
Issue/Holding: Prediction of future dangerousness may be made of a juvenile in a Ch. 980 proceeding.
The state’s experts assessed Matthew’s dangerousness by using the “Doren criteria,” which were developed through research involving adults. Moreover, Matthew adduced evidence “that juveniles have a lower propensity to reoffend in sexual violence situations.”
Custody — Terry-type Investigation
State v. Dale Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998)
For Gruen: Scott F. Anderson
Issue/Holding:
… (W)hether or not Gruen was being detained pursuant to a Terry stop, or had been arrested for Fourth Amendment purposes, is not the determinative consideration. The only important inquiry is whether, for Fifth amendment purposes, he was “in custody.” To determine whether a person is in custody for Fifth amendment purposes:…
Jury – Selection – Batson Objection, Timeliness: Prior to Jury’s Swearing
State v. Dennis Jones, 218 Wis. 2d 599, 581 N.W.2d 561 (Ct. App. 1998)
For Jones: Michael S. Holzman
Issue/Holding:
The State argues that Jones’s Batson objection, made after the jury was sworn, came too late. Jones responds that his objection was timely. We conclude that the defendant must make a Batson objection prior to the time the jury is sworn. If the objection is not made until after that time,
§ 974.06 Serial Litigation: Defendant Represented by Trial Counsel on Prior, Direct Appeal
State v. Spriggie Hensley, Jr., 221 Wis. 2d 473, 585 N.W.2d 683 (Ct. App. 1998)
For Hensley: Pro se
Issue/Holding: The rule that a defendant’s representation by the same attorney at trial and on direct appeal constitutes a “sufficient reason” for not asserting ineffective assistance of counsel in the direct appeal survives State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994).