On Point blog, page 3 of 12
COA: Pharmacologist properly barred from testifying about stomach condition
State v. Paul E. Ayala, 2017AP1510, 7/3/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
Ayala was charged with OWI. A blood test showed a high level of Ambien in his system. He sought to defend on the ground of involuntary intoxication by presenting a pharmacologist’s testimony that he had a stomach condition that caused the drug to build up in his system.
Daubert’s teeth still missing
State v. Anthony Jones, 2018 WI 44, 5/4/2018, affirming an unpublished summary order, 2015AP2665, case activity
We noted in our post on the grant of Jones’s PFR that at the time there were “exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert.” That’s still true.
Court rejects several challenges to homicide trial conviction
State v. Dakota R. Black, 2017AP837, 3/22/18, District 4 (not recommended for publication); case activity (including briefs)
A jury convicted Black of the homicide of B.A.T., a five-year-old child in his care; the child was bruised and died of subdural hemorrhages. Black defended on the theory that the child’s injuries came in a fall, either on the stairs or on the playground.
Child protective services case worker properly allowed to give lay opinion testimony
State v. B.D.H., 2017AP2390 & 2017AP2391, District 1, 3/6/18 (one-judge decision; ineligible for publication); case activity
At B.D.H.’s TPR trial her case worker testified that, in her opinion, B.D.H. wouldn’t be able to meet the conditions set by a CHIPS order for the return of her children within the statutory timeframe. The testimony was admissible under § 907.01, which allows lay opinion testimony if it is “(1) [r]ationally based on the perception of the witness[;] (2) [h]elpful to a clear understanding of the witness’s testimony or the determination of a fact in issue,” and “(3) [n]ot based on scientific, technical, or other specialized knowledge….”
Defense evidence properly excluded for lack of foundation
State v. Scott F. Ufferman, 2016AP1774-CR, District 3, 11/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Ufferman complains the trial court’s evidentiary rulings improperly stymied his defense against the charge of operating with a detectable amount of THC. The court of appeals holds the trial court’s rulings were correct.
CAD report not inadmissible hearsay; retrograde extrapolation passes Daubert
City of West Bend v. Rebecca L. Smith, 2016AP2170, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Smith appeals her jury-trial conviction for OWI. She argues that the court erroneously admitted, over hearsay objection, the computer aided dispatch activity report indicating the times that the police took various actions. She also seeks reversal based on the admission of expert testimony opining as to her BAC by the technique of retrograde extrapolation.
SCOW to review IAC, sentencing, and cross-appeal issues
State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)
Issues (composed by On Point):
1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?
2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?
3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?
4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?
5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?
Expert on child victim reporting behaviors met Daubert standard
State v. Adam M. Zamora, 2016AP1923-CR, District 2, 9/27/17 (not recommended for publication); case activity (including briefs)
The circuit court properly exercised its discretion in determining that an expert witness called to testify about child sexual assault victim reporting behaviors met the so-called Daubert standard codified in § 907.02(1).
State v. Anthony Jones, 2015AP2665, petition for review granted 9/11/2017
Review of a summary order of the court of appeals; affirmed 5/4/18; case activity (including briefs)
Issues (from the petition for review):
Anthony Jones was committed under Wis. Stat. ch. 980 after a trial at which the state presented expert testimony relying in part on two actuarial instruments: the MnSOST-R and the RRASOR. Mr. Jones had moved pretrial to exclude these instruments as unreliable under Wisconsin’s new Daubert standard, because they are decades old and were constructed using questionable means. The circuit court permitted their introduction on the ground that they are still in use and that the state’s expert had testified that they are reliable. Did the court adequately scrutinize the instruments for reliability, as is its responsibility under Daubert?
Petitioner isn’t required to present testimony of a physician or psychologist at a ch. 51 extension hearing
Dodge County v. L.A.S., 2017AP302, District 4, 8/17/17 (one-judge decision; ineligible for publication); case activity
Under § 51.20(9)(a) the circuit court must appoint two licensed physicians or psychologists to examine and write reports on an individual subject to involuntary commitment proceedings. This requirement applies only to the initial commitment proceeding, not to the proceeding to extend a commitment.