On Point: 4. Character, 904.04

State v. David Gutierrez, 2020 WI 52, reversing in part a published court of appeals opinion, 6/3/20; case activity (including briefs)

In a 5-0 decision, SCOW affirms all parts of this published court of appeals decision but one. The court of appeals held that the circuit court erred in refusing to admit evidence that excluded Gutierrez as the source of male DNA in the underwear and around the mouth of a victim of child sexual assault. The assaults involved oral sex and attempted vaginal intercourse. SCOW reversed the court of appeals on that point.

State v. David Gutierrez, 2017AP2364-CR, petition for review of a published court of appeals decision granted 11/13/19; case activity (including briefs)

Issue (based on the State’s Petition for Review):

1. Did the court of appeals violate the standard of appellate review of trial court evidentiary rulings by holding the trial court erred in deciding to exclude evidence offered by the defendant that DNA from other men was found on the clothing of the complainant in a child sexual assault prosecution?

2. Did the court of appeals improperly apply Wis. Stat. § 972.11(2)(b), Wisconsin’s rape shield law, when it held the defendant was not offering the DNA evidence as evidence concerning the victim’s prior sexual conduct?

State v. Jeffrey D. Lee, 2018AP1507-CR, 11/5/19, District 1 (not recommended for publication); case activity (including briefs)

At a jury trial for child sexual assault, the circuit court admitted “other acts” evidence that Lee had similarly assaulted 5 other children. The court of appeals called the “other acts” evidence of the 3rd, 4th and 5th children “textbook hearsay,” held that the circuit court erred in admitting it, but affirmed based on the harmless error doctrine.

State v. Eric L. Vanremortel, 2018AP417, 9/4/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Vanremortel was charged with disorderly conduct for an incident in which he followed the wife of a retired police officer in her car, then repeatedly got out of his own car and shouted at her. The state sought to admit evidence of three prior incidents involving Vanremortel following and/or shouting at police officers, including one that happened a few weeks before the charged conduct and involved the wife’s retired-officer husband. The circuit court admitted the evidence, finding it satisfied the test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and Vanremortel appeals.

State v. Daniel A. Griffin, 2019 WI App 49; case activity (including briefs)

Someone killed a young child in Griffin’s home. Both Griffin and the child’s mother were present at the time. What evidence was the jury allowed to hear about who committed the crime? If you guessed “any remotely relevant evidence implicating Griffin” (whom the state had charged) and “no evidence implicating the mother” (whom it had not) then you are a scholar of Wisconsin evidentiary law.

State v. Kevin B. Hutchins, 2018AP1144-CR, 7/16/2019, District 1 (not recommended for publication); case activity (including briefs)

Hutchins had a jury trial for the alleged sexual assault, false imprisonment, and battery of the mother of his children. The judge permitted her to testify, over objection, that he had hit her on other, earlier occasions–the proffered purpose of this testimony being to show why she didn’t immediately go to the police after this incident (and thus, apparently, to defend the credibility of her story). The court of appeals affirms.

State v. David Gutierrez, 2019 WI App 41, petition for review granted, 11/13/19, reversed in part and affirmed in part, 2020 WI 52; case activity (including briefs)

The circuit court allowed the state to admit testimony that Gutierrez’s DNA wasn’t found after testing of relevant evidence state as well as testimony about why his DNA might not be found; it did not, however, allow Gutierrez to admit evidence that the DNA of other men had been found. This was error.

State v. Christopher L. Gee, 2019 WI App 31; case activity (including briefs)

Christopher Gee was accused of sexually assaulting two women at knifepoint; one of the women had come to Gee’s apartment building because someone there had agreed to pay her for sex. He admitted to police that he’d had sex with this second woman, but said it was consensual and he’d simply refused to pay her afterward–something he said he often did. (¶10).

State v. Alberto E. Rivera, 2018AP952-CR, 4/30, District 1 (not recommended for publication); case activity (including briefs).

The State charged Rivera with a homicide and an attempted homicide that occurred in 2015. Before trial, it moved to introduce “other acts” evidence–a homicide that Rivera committed in 1997. The trial court tentatively denied the motion. But then Rivera’s counsel made a “strategic” decision to offer the evidence as part of his defense.  So, as you might guess, the appellate challenge regarding the admission of this evidence failed.

State v. Maries D. Addison, 2018AP55-57-CR, 3/26/19, District 1 (not recommended for publication); case activity (including briefs)

The court of appeals agreed that the 17-month delay in bringing Addison to trial was presumptively prejudicial, but based on the unique facts of this case, it held that his speedy trial rights weren’t violated. Addison did a fine job representing himself (he got “not guilty” verdicts on 5 of 22 counts) so his “incompetency to proceed pro se” claim went nowhere. Plus his freedom of religion claim (right to have a Bible with him during trial) failed because his argument was insufficiently developed.