On Point blog, page 11 of 12
Opinion Testimony – comment on truthfulness of another, mentally impaired witness
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.
Expert Testimony – HGN test
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.
PBT – Requires Expert Testimony
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,
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.”