On Point blog, page 22 of 24
Particular Examples of Misconduct, § 904.04(2) — Prior Child Abuse — Trial on Homicide of Child
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether evidence of prior child abuse, both to the immediate victim and another child, was properly admitted in a trial on homicide of a child.
Holding: There was sufficient evidence for a reasonable jury to find by a preponderance of the evidence that the defendant committed the various prior acts.
Particular Examples of Misconduct, § 904.04(2) — Admissibility — in General
State v. Joseph F. Rizzo, 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 824, reversed and remanded on other grounds, 2002 WI 20
For Rizzo: Franklyn M. Gimbel
Issue: Whether admission of other acts evidence was an erroneous exercise of discretion.
Holding:
¶5 … In a written decision, the trial court properly applied the Sullivan three-step analysis:
The acts which took place some years ago are remarkably similar to the allegations before the Court in this case …
Particular Examples of Misconduct, § 904.04(2) — Prior Sexual Assault of Adult — Relevance to Charge of Child Sexual Assault — Dissimilarities, Including Age Disparity of Victims
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether a prior sexual assault of an adult was sufficiently similar to the charged sexual assault of a child to be admissible as other crimes evidence.
Holding:
¶14. The next step is whether the 1992 conviction was relevant; that is, whether under Wis. Stat. § 904.01, it relates to a fact or proposition that is of consequence to the determination of the action and if it has probative value.
§ 904.01, Relevance – Demonstrative Evidence
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a witness should have been permitted to demonstrate with a doll the force used to cause injuries to the child victim.
Holding: The fact that the experts couldn’t agree on the exact cause of the injuries goes to weight, not admissibility, of the demonstration.
§ 904.01, Relevance – Consciousness of Innocence – Offer to Take DNA Test
State v. Miguel Angel Santana-Lopez, 2000 WI App 122, 237 Wis.2d 332, 613 N.W.2d 918
For Santana-Lopez: Rex Anderegg
Issue: Whether a sexual assault defendant’s pretrial offer to take a DNA test is relevant as consciousness of innocence.
Holding: “(A)n offer to undergo DNA analysis [is] relevant to the state of mind of the person making the offer — so long as the person making the offer believes that the test or analysis is possible,
Cross-examination – Impeachment of Defense Witness with Parole Eligibility Date
State v. Dennis E. Scott, 2000 WI App 51, 234 Wis. 2d 129, 608 N.W.2d 753
For Scott: Joseph E. Redding
Issue: Whether a defense witness was properly impeached with evidence that he was serving life in prison with no prospect for parole.
Holding: The witness’s attempt to admit the crimes and exonerate the defendant would have misled the jury absent revelation of his functional immunity stemming from his parole status: “where no practical,
§ 904.01, Relevance – Consciousness of Guilt — as Distinct from Misconduct Evidence
State v. Michael R. Bauer, 2000 WI App 206, 238 Wis. 2d 6887, 617 N.W.2d 902
For Bauer: Thomas Voss
Issue: Whether evidence that the defendant, while awaiting trial, solicited the murders of people who were going to testify against him was admissible.
Holding:
¶2 Bauer argues that the solicitation evidence was other acts evidence which was improperly admitted pursuant to Wis. Stat.
§ 904.01, Relevance – Silence in Face of Accusation
State v. Ondra Bond, 2000 WI App 118, 237 Wis. 2d 633, 614 N.W.2d 552, affirmed by equally divided court, 2001 WI 56.
For Bond: William Coleman; Janet Barnes, Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The prosecution may not use at trial the fact that a defendant stood mute in the face of an accusation. ¶27.
§ 904.01, Relevance – Victim’s Medical Records
State v. Frank M. Ruszkiewicz, 2000 WI App 125, 237 Wis. 2d 441, 613 N.W.2d 893
For Ruszkiewicz: Mark S. Rosen
Issue: Whether the trial court erred in refusing to order production of the victim’s police and medical records, sought on the theory that they might show a condition that would cause her to bruise easily and, therefore, refute the element of force as demonstrated by her bruises.
Misconduct, § 904.04(2) – Motive and Intent — Videotaped Sex Acts of Young Females — Relevance to Child-Enticement
State v. Gabriel DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. Derango, 229 Wis. 2d 1, 599 N.W.2d 27
For Derango: Robert G. LeBell
Issue: Whether the trial court properly admitted, as misconduct evidence relevant to motive and intent on child enticement-related charges, depictions of sex acts by young females on videotapes found in the defendant’s home.