On Point blog, page 2 of 5
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).
More on probable cause to arrest for OWI
State v. George R. Ferrell, Appeal No. 2012AP2602, 9/26/13, (1-judge; ineligible for publication); case activity
A state trooper does not need evidence such as odors, admissions or containers to have probable cause to arrest for OWI. These facts will do the trick:
¶12 . . . [T]he State Patrol received several reports that Ferrell was driving erratically and dangerously. Thiede observed that Ferrell was speeding and watched Ferrell swerve within his lane.
Substitution of judge — § 971.20(4),(5); reassignment of original judge does not make the judge “new” for substitution purposes. Admission of evidence — limiting the playing of audio recordings. Armed robbery, § 943.32 — sufficiency of the evidence.
State v. Keith M. Bohannon, 2013 WI App 87; case activity
Substitution of judge; “new” judge under § 971.20(5)
When a case is reassigned from the original judge to a second judge and then reassigned again back to the first judge, the first judge is the “original” judge assigned to the case under § 971.20(4), not a “new” judge under § 971.20(5). Therefore, a motion to substitute the original judge had to be filed before the arraignment,
“Plain” error means plain at the time of appeal, not trial
Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5th Cir. 2011)
When is plain really plain? That’s the plain and simple issue in this case. During trial, the district court decided a substantive legal question against the defendant. But while the case was on direct appeal, SCOTUS, in a separate case, settled the legal question in the defendant’s favor, thus prompting a question about whether the district court’s decision in Henderson qualified as “plain error.”
Issue: “Is the time for determining “plainness” the time when the error is committed,
Evidence – Admissibility of Blood Test Results
State v. Michael Perzel, III, 2011AP1190-CR, District 4, 12/1/11
court of appeals decision (1-judge, not for publication); for Perzel: Waring R. Fincke; case activity
Blood test results are admissible without expert testimony to reflect a person’s bac at the time in question (in this OWI-related prosecution, at the time Perzel was driving), so long as the blood was drawn by a person enumerated in § 343.305(5)(d). One such person is a “registered nurse.”
Confrontation – Dying Declaration; Hearsay – Prior Inconsistent Statements
State v. Marvin L. Beauchamp, 2011 WI 27, affirming 2010 WI App 42; for Beauchamp: Craig S. Powell; case activity
Confrontation – Dying Declaration, § 908.045(3)
¶34 We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception.
Newly Discovered Evidence: Test – SVP Commitment – Revised Actuarial; Completeness Doctrine, § 901.07; Interest of Justice Review
State v. Richard D. Sugden, 2010 WI App 166 (recommended for publication); for Sugden: Donald T. Lang, SPD, Madison Appellate; Sugden BiC; State Resp.; Reply
Newly Discovered Evidence – Test – Generally
¶14 In order to be entitled to a new trial based on newly discovered evidence, Sugden must prove by clear and convincing evidence that (1) the evidence is,
Plain Error
State v. Erik B. Hudson, 2010AP000780-CR, District 3, 8/10/10
court of appeals decision (1-judge, not for publication); for Hudson: George S.Pappas, Jr.; BiC; Resp.
While “better practice” would have been to strike and give a curative instruction following a witness’s non-responsive testimony, the trial court’s failure to do so wasn’t plain error.
Plain Error, § 901.03 – Generally
State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09
For Lammers: Amelia L. Bizzaro
Issue/Holding:
¶12 “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat.
Plain Error, § 901.03(4) – “Haseltine / Jensen” Issue
State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel
Issue/Holding: Unpreserved challenge to sexual assault nurse examiner’s testimony (that abrasions were consistent with forcible intercourse and that no complainant had ever provided her with an inaccurate history) didn’t rise to plain error:
¶12 As the circuit court noted, Stephan did not offer an opinion about the cause of Keri’s abrasion,