On Point blog, page 21 of 24
§ 904.01, relevance – Failure to Identify Defendant as Bearing on Suggestiveness of Lineup
State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry
Issue/Holding:
¶43. Wright argues that Lomack’s testimony was relevant on the issue of whether the police lineup was suggestive. In assessing relevance, the trial court must determine whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
§ 904.01, Relevance – Demeanor – Evincing Guilt
State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning
Issue/Holding:
¶29 …. Silva’s brother testified that on the day of the assault Silva attended a service that discussed the act of “sinning again.” Silva’s brother stated that Silva sat down during the discussion while everyone else remained standing. This behavior is consistent with the conduct of a person who has recently committed a crime and is admissible as such.
Self-Defense — “McMorris” Acts of Violence by Victim
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶123. We conclude that evidence of a victim’s violent character and of the victim’s prior acts of violence of which a defendant has knowledge should be considered in determining whether a sufficient factual basis exists to raise a claim of self-defense.
§ 904.04, Character Evidence – “Pertinent Trait” and Relevance
State v. Glenn E. Davis, 2002 WI 75, reversing and remanding 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922
For Davis: James M. Shellow
Issue/Holding:
¶16. The rules on character evidence and expert testimony allow for the admissibility of Richard A.P. evidence. Under our rules of evidence, a defendant may introduce “pertinent trait[s]”
Particular Examples of Misconduct, § 904.04(2) — Prior Juvenile Offense — Probative Value
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue: Whether evidence that the defendant committed a burglary at the age of 13 was admissible as extrinsic evidence to impeach his testimonial denial, on cross-examination, of intent to steal.
Holding: § 906.08(2) expressly prohibits using extrinsic evidence of specific instances of conduct to attack a witness’s credibility,
Particular Examples of Misconduct, § 904.04(2) — Prior Domestic Abuse — on Trial of Battery to Live-in Girlfriend
State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App
Issue: Whether, in a prosecution for battery against the defendant’s live-in girlfriend, evidence of the defendant’s domestic abuse of his former wife was admissible.
Holding: The evidence tended to refute the defense of lack of intent to harm:
¶22. Here, the prior acts testified to by Love were very similar to the events surrounding the charged offense and,
Particular Examples of Misconduct, § 904.04(2) — Prior Sexual Assault of Child — 11 years Earlier — not Remote in Time
State v. Michael L. Veach, 2002 WI 110, reversing 2001 WI App 143
For Veach: Suzanne Hagopian, SPD, Madison Appellate
Issue: Whether, on charges of sexually assaulting a 7-year old girl, evidence that the defendant had sexually assaulted his 9-year old daughter approximately 11 years earlier was properly admissible.
Holding:
- 1). The evidence was offered for an acceptable purpose,
Particular Examples of Misconduct, § 904.04(2) — Motive to Flee: Outstanding Warrants — “Not Classic ‘Other Crimes’ Evidence”
State v. Brian D. Seefeldt, 2002 WI App 149, affirmed, 2003 WI 47
For Seefeldt: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶23. We are satisfied that the reference to the outstanding warrants is not classic “other acts” evidence invoking Wis. Stat. § 904.04(2) analysis. Rather, the existence of the warrants is “part of the panorama of evidence” that directly supports Seefeldt’s defense and sits at the heart of his right to present exculpatory evidence.
Particular Examples of Misconduct, § 904.04(2) — Prior Sexual Assaults — 15-25 Years Earlier, not Remote
State v. Eugene P. Opalewski, 2002 WI App 145, PFR filed 6/6/02
For Opalewski: Lorinne J. Cunningham
Issue/Holding: On charges of first degree sexual assault of a child and incest, evidence of the defendant’s past sexual abuse of his two daughters and the children of a prior girlfriend was admissible under the three-step test of State v. Sullivan, 216 Wis.
Self-Defense – “McMorris” Acts of Prior Violence by Victim – Procedure on Determining Admisssibility
State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau
Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.
Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession;