On Point blog, page 6 of 24
Court of appeals affirms admission of other acts evidence to prove child sexual assault
State v. Marco A. Lopez, Sr., 2018AP159-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs).
The State charged Lopez with child sexual assault of two victims and moved to admit the of testimony of two additional relatives who said that they were also assaulted by Lopez for years when they were the same ages as the victims. Lopez conceded the first two elements of the “other acts” evidence test. State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), §904.04(2) and §904.03. He argued that the trial court incorrectly weighed the probative value of the evidence against the danger of unfair prejudice.
Video seems to show white robber in state’s other-acts evidence; COA, over dissent, upholds conviction of black defendant
State v. Darrin L. Malone, 2017AP680-CR, 9/26/18, District 2 (not recommended for publication); case activity (including briefs)
The disputed image is below. It’s of a similar robbery three days before the robbery for which Malone was convicted of felony murder (the other robber in that latter robbery–who testified against Malone–admitting shooting and killing the gas station clerk). The state showed the video of that earlier robbery to the jury, hoping to convince them that Malone did that one, and thus likely did the one he was being tried for, too. Showed it, that is, except for the 10 seconds including this frame, which seems to show a white person’s hand on the robber the state claimed was Malone. Malone is black.
Court of appeals rejects multiple challenges to TPR
State v. R.D.J., 2017AP547, 8/7/18, District 1 (one-judge decision; ineligible for publication); case activity
R.D.J. appeals the termination of his parental rights to his daughter, T.S.J. He argues that his lawyer was ineffective for not challenging the state’s expert’s report on Daubert and undue prejudice grounds, that his due process rights were violated because T.S.J.’s removal from the home made it impossible for him to show a substantial parental relationship, and that the CHIPS order itself established that such a relationship existed.
Witness ID of defendant sitting with two others wasn’t a “showup”; no IAC for not getting expert on eyewitness reliability
State v. Melvin Lidall Terry, 2017AP1625, 8/7/18, District 1 (not recommended for publication); case activity (including briefs)
Police arrested Terry, his girlfriend Carter, and his brother X.C. soon after, and in the vicinity of, a fatal shooting. The police seated the three on the curb and directed one man who had witnessed the shooting to “look over and identify who it was”; he identified Terry.
Jury learning PBT was requested not grounds for mistrial
State v. Dale R. Delvoye, 2017AP833, 7/3/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
At Delvoye’s OWI trial, an officer testified that as part of the stop he asked Delvoye to take a preliminary breath test. Counsel objected and moved for a mistrial. The trial court denied the mistrial, and the court of appeals affirms.
Defense win on suppression of evidence relating to destroyed blood sample, loss on sanctions against County
County of Milwaukee v. Ross J. Romenesko, 2017AP1042-1044, 6/19/18, District 1, (1-judge appeal, ineligible for publication); case activity (including briefs)
Romenesko prevailed below–the circuit court (1) suppressed a revised report relating to his blood sample, (2) precluded but one of its experts from testifying, and eventually (3) dismissed the the OWI 1st offense and operating with a PAC 1st offense charges against him as a sanction against the County. The court of appeals affirmed the suppression decision but reversed the other 2 decisions.
Evidence defendant shot a gun at prior incident was admissible
State v. Terrell Dawon Essex, 2017AP1509-CR, District 1, 5/15/18 (not recommended for publication); case activity (including briefs)
Essex was on trial for being a felon in possession of a firearm and first degree reckless homicide of a man named Dotson by use of a dangerous weapon. The circuit court allowed the state to present evidence that on a prior occasion Essex used the same firearm involved in Dotson’s shooting. The court of appeals holds the evidence was admissible.
Court of Appeals rejects challenges to child sexual assault convictions
State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)
In this lengthy decision, the court of appeals rejects multiple challenges Gregory makes to his convictions for child sexual assault that occurred in 1997.
Other-acts evidence proper; prosecutor’s closing improper, but not prejudicial
State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)
Evidence that Rogers was identified as a passenger in a vehicle reported stolen was properly admitted in his armed robbery trial because it provided “context” and “background” to one of the robbery charges for which he was on trial. And while the prosecutor made in improper argument in rebuttal closing because it wasn’t based on any evidence whatsoever, the argument wasn’t prejudicial.
Lineup procedure was not suggestive
State v. Jamey Lamont Jackson, 2017AP968-CR, Distirct 1, 3/6/18 (not recommended for publication); case activity (including briefs)
Jackson argues his trial lawyer should have moved to suppress the identifications of him in a live lineup viewed by three eyewitnesses to a crime. He claims the identification procedure was impermissibly suggestive because, before the witnesses were interviewed about whether they could identify anyone in the lineup, one witness asked to view the person in position number five (Jackson) again and therefore suggested to the other witnesses who they should identify. (¶¶3, 11). The court of appeals disagrees.