On Point blog, page 3 of 4
Lack of scienter requirement in statute prohibiting driving with a detectable amount of a controlled substance doesn’t violate due process
State v. Michael R. Luedtke, 2014 WI App 79, petition for review granted 10/15/14, affirmed, 2015 WI 42 (posts here and here); case activity
Section 346.63(1)(am), which prohibits operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood, does not violate due process by failing to require proof that the defendant knowingly ingested the controlled substance. In addition, Luedtke’s due process rights were not violated when the state crime lab destroyed his blood sample before he could have it independently tested.
Multiplicity — conviction for inchoate crime of conspiracy and completed crime under § 939.72(2). Constitutional right to speedy trial. Prosecutorial misconduct — failing to disclose sentencing consideration for a state’s witness
State v. Michael Lock, 2013 WI App 80; case activity
Multiplicity — conviction for conspiracy and for completed crime under § 939.72(2)
Lock was convicted of conspiracy to solicit prostitutes and conspiracy to pander between 1998 and 2003. Based on conduct in four specific months in 2002, he was also convicted of four counts of soliciting prostitutes as a party to the crime and four counts of pandering as party to the crime.
Due process – destruction of evidence by the state
State v. Viliunas, 2012AP2284-CR, District 2, 2/20/13; court of appeals decision (1-judge, ineligible for publication); case activity
State’s destruction of video from police car’s dashboard camera did not violate OWI defendant’s due process rights. The defendant, who was found in the driver’s seat of a ditched car, claimed another person had been driving—although not until his jury trial, which occurred over a year after the incident, and after Viliunas had missed two earlier trial dates.
Exculpatory Evidence – Duty to Preserve
State v. Thomas R. McEssey, 2011AP2668-CR, District 4, 9/20/12
court of appeals decision (not recommended for publication); case activity
The police inadvertently destroyed a recording of a phone conversation between McEssey and the alleged victim. (A separate, but partial recording – containing only the latter’s side of the conversation – was made, misplaced, and belatedly disclosed to the defense.) Finding that the destruction of the recording of the full conversation was unintentional,
Due Process – Exculpatory Evidence, Failure to Disclose – Impeachment: Not Material, Where Cumulative
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 (prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Failure to disclose evidence that a prosecution witness had falsely implicated Rockette in another homicide did not violate Brady, because it would not have had an impact on the outcome of the trial:
¶41 Evidence of impeachment is material if the witness whose testimony is attacked “supplied the only evidence linking the defendant(s) to the crime,” United States v.
Due Process – Exculpatory Evidence – Deferred-Judgment Probationary Status, Prosecutorial Duty to Disclose, § 971.23(1)(f)
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue/Holding:
¶23. Under Wis. Stat. § 971.23(1)(f), a prosecutor must, upon request, disclose to the defense “[t]he criminal record of a prosecution witness which is known to the district attorney.” A prosecutor, however, has an affirmative duty to make reasonable inquiry and may not assert that he or she did not know of those things within the ambit of § 971.23 that could have been reasonably discovered.
Due Process – Exculpatory Evidence – Generally
State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch
Issue/Holding:
¶12 In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment,
Due Process – Exculpatory Evidence — Lenient Treatment of Prosecution Witness
State v. Dale H. Chu, 2002 WI App 98, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.
Holding:
¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not evidence that the witness has been convicted of a crime.”
Due Process – Exculpatory Evidence – Posttrial Destruction
State v. Jerry L. Parker, 2002 WI App 159, PFR filed 5/20/02
For Parker: William Christopher Rose
Issue: Whether posttrial destruction of potentially exculpatory evidence (taped drug transaction) requires new trial.
Holding:
¶14. A defendant’s due process rights are violated by the destruction of evidence (1) if the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means;
Due Process – Exculpatory Evidence – Destruction of Notes by State’s Investigator
State v. Debra Noble, 2001 WI App 145, 629 N.W.2d 317, reversed, other grounds, State v. Debra Noble, 2002 WI 64
For Noble: Jeff P. Brinckman
Issue: Whether a state investigator’s destruction of interview violated the defendant’s due process right to exculpatory evidence.
Holding:
¶17. A defendant’s right of pretrial access to exculpatory evidence needed to prepare a defense is protected by the Due Process Clause of the Fourteenth Amendment.