On Point: Published 2003

State v. Hank J. Merten, 2003 WI App 171
For Merten: Dana W. Duncan

Issue/Holding:

¶8. Accordingly, the resolution of this appeal requires us to determine whether the effect of 42 U.S.C. § 1320a-7(a)(4), which excludes individuals convicted of a felony related to a controlled substance from participating in federal health care programs, is a direct or a collateral consequence of Merten’s no contest plea.

State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove

Issue/Holding:

¶44. The State charged Gundy as an accomplice to Ross’s criminal activity. Gundy was arrested in Maryland, and brought back to Milwaukee where he was held in custody. Ross contends that pursuant to a plea agreement, Gundy was released from custody, and secured leniency in return for his testimony against Ross.

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

Issue/Holding:

¶24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶9.) The statute reflects the presumption that “a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted.” 

State v. Andre Bolden, 2003 WI App 155, PFR filed 7/2/03
For Bolden: Mark S. Rosen

Issue/Holding: A defendant may be asked whether another witness offering contradicting testimony “is lying,” ¶11.

The seminal case is State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984): one witness may not give an opinion as to whether another witness is telling the truth.

State v. Derryle S. McDowell, 2003 WI App 168, affirmed, 2004 WI 70
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL

Issue/Holding: “(N)o witness may testify as an expert on issues of domestic law; ‘the only “expert” on domestic law is the court.’ Wisconsin Patients Comp. Fund v.

State v. Joseph F. Rizzo II, 2003 WI App 236, PFR filed 11/13/03, on appeal after remand of State v. Rizzo I, 2002 WI 20
For Rizzo: Kathryn A. Keppel, Raymond M. Dall’osto

Issue: Whether Rizzo is entitled to a psychological examination of the sexual assault complainant pursuant to State v. Maday, 179 Wis. 2d 346, 507 N.W. 2d 365 (Ct.

State v. Steven G. Walters, 2003 WI App 24, reversed on other grds., 2004 WI 18
For Walters: Jenelle L. Glasbrenner, David A. Danz

Issue/Holding:

¶28. Again, the admissibility of expert testimony is committed to the discretion of the trial court. Friedrich, 135 Wis. 2d at 15. At the offer of proof hearing, Walters’s proposed expert, Dr.

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

Issue/Holding1: “(W)e conclude that ‘assertion,’ as used in § 908.01(1) means an expression of a fact, condition, or opinion.” ¶38. And, the speaker must intend the utterance to be an “assertion” as thus defined, because “when a speaker does not intend to communicate anything, his or her sincerity is not in question and the need for cross-examination to test perception,

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.