On Point blog, page 1 of 2
SCOW holds video of child admissible; talks about forfeiture but makes no law
State v. Mercado, 2021 WI 2, 1/20/21, reversing a published court of appeals decision; case activity (including briefs)
Mercado stood trial for sexual assault of three young girls. A video of each girl’s forensic interview was played for the jury pursuant to Wis. Stat. § 908.08. Mercado contends that none of the videos were properly admitted. The supreme court holds that he forfeited most of his challenges, and rejects those it considers.
COA: Chapter 51 appellant’s initial brief must anticipate and refute mootness challenge
Rock County v. R.J., 2020AP93, 8/13/20, District 4 (1-judge opinion, ineligible for publication); case activity
Thank heavens this opinion is not published. R.J’s initial commitment expired before he filed his notice of appeal. According to the court of appeals, R.J. should have sua sponte addressed mootness in his initial brief–before the County ever argued the point. Because R.J. waited to see whether the County would even raise mootness and then addressed the matter in his reply, the court of appeals dismissed his appeal. The court of appeals also made an error of law regarding the “contemporaneous objection” requirement. Hopefully, R.J. will move for reconsideration or petition for review.
Trial court properly excluded defendant’s testimony that injunction petitioner was “stalking” him
State v. Randall Ray Madison, 2015AP451-CR & 2015AP452-CR, District 1, 8/11/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Madison, who was charged with violating a domestic abuse injunction obtained against him by L.M., wanted to testify that L.M. “stalks me.” (¶5). The trial court properly exercised its discretion in excluding this testimony.
No error in limiting cross examination and rejecting offer of proof about FSTs at refusal hearing
State v. Kyle R. Christoffersen, 2014AP1282, District 2, 1/28/15 (1-judge decision; ineligible for publication); case activity
The judge at Christoffersen’s refusal hearing didn’t violate Christoffersen’s due process rights when it limited cross-examination about the arresting officer’s training on, and administration of, field sobriety tests and refused to allow Christoffersen to make an offer of proof by questioning the officer. (¶¶5-7, 14).
Due Process – Defendant’s Right to Testify – Retraction of Waiver – Offer of Proof Required
State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09
For Winters: Ralph Sczygelski
Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his proposed testimony, either at trial or on postconviction motion,
Forfeited Issue – Failure of Court Reporter to Take Down Tape as Played to Jury
State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen
Issue/Holding:
¶14 As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. 2d ___,
Evidence – Sufficiency of Objection, Admissibility – Specificity of Ground Required
State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg
Issue: Whether a trial-level objection that a dismissed witness was unavailable for cross-examination on a prior statement was specific enough to preserve an appellate argument that the witness wasn’t given an opportunity to explain or deny the statement.
Holding:
¶31 The State argues that Nelis did not object at trial to the admission of the statements on the ground of Wis.
Evidence, Admissibility – Sufficiency of Objection
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether objection to admissibility of a defendant’s statement on the ground that it was “an offer of settlement” (which thus raised a § 904.08 bar) sufficed to raise a § 904.10 objection of an inadmissible offer to plead guilty.
Holding:
¶17 First, at the very least, trial counsel’s objection should have led the court to Wis.
§ 901.03, Objection/Offer of Proof – Pretrial: Definitive Ruling Properly Preserves Objection; Conditional Ruling Doesn’t
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding: “A definitive pretrial ruling preserves an objection to the admissibility of evidence without the need for an objection at trial, as long as the facts and law presented to the court in the pretrial motion are the same as those that arise at trial.” ¶27. The trial court’s “definitive” rulings on Kutz’s pretrial hearsay objections preserved the issue of admissibility of those statements,
Waiver of Objection: Stipulation
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith
Issue: Whether defendant waived review of objection to admissibility of misconduct evidence by entering into a “Wallerman” stipulation.
Holding: A stipulation under State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (an element is conceded and the other-act isn’t admitted) waives the issue of admissibility:
¶5.