On Point: G. Opinions/experts, Ch. 907

State v. Aaron Schaffhausen, 2014AP2370-CR, District 3, 7/14/15 (not recommended for publication); case activity (including briefs)

It was error for the circuit court to tell jurors at the mental-responsibility phase of Schaffhausen’s NGI trial that they would decide whether a defense psychiatrist and psychologist were qualified as expert witnesses, but the error was harmless. In addition, the circuit court did not misuse its discretion in denying the jury’s request during deliberations to provide it with the expert witnesses’ reports.

State v. Lance Donelle Butler, Jr., 2014AP1769-CR, District 1, 6/9/15 (not recommended for publication); case activity (including briefs)

Using cell phone tower data provided by Butler’s cell phone service provider to make a map of where Butler had used his cell phone on the day of the crime didn’t require “scientific, technical, or other specialized knowledge” under § 907.02(1); thus, the police officers who created the map didn’t need to be qualified as experts under the statute and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.

The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.

State v. Todd J. Giese, 2014 WI App 92; case activity

Expert testimony regarding retrograde extrapolation of Giese’s blood alcohol concentration is admissible under new version of § 907.02(1) despite the fact some experts doubt its reliability because it was the product of reliable principles and methods and based upon sufficient facts and data.

State v. Ricky H. Jones, 2013AP1731-CR, District 2, 7/30/14 (unpublished); case actvity

Exclusion of expert testimony about defendant’s lack of propensity toward child sexual assault

In defending Jones against two counts of 1st-degree sexual assault of a child, his lawyer wanted to elicit expert testimony that Jones posed a low risk of committing a sexual offense–a strategy authorized by State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998).  Unfortunately, trial counsel failed to give the expert report to the State pursuant to its discovery demand, so the trial court excluded it under §971.23(7m)(a) and State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488.  Jones was convicted and appealed.

State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity

Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds?  In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury.  This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.

State v. Ross Timothy Litke, 2013AP1606-CR, 3/11/14, District 1 (1-judge opinion, ineligible for publication); case activity

This was a potentially interesting Daubert case.  The police stopped the car Litke was driving because a tail light was out.  The officer noticed Litke’s bloodshot eyes and asked if he had been drinking.  “Yes, a few beers,” Litke replied.  The officer thus conducted 3 field sobriety tests:  the Horizontal Gaze Nystagmus test (which Litke flunked),

Anthony Ray Hinton v. Alabama, USSC 13-6440, 2/24/14 (per curiam), vacating Hinton v. State, __So. 3d__, 2013WL 598122 (2/15/13).

Docket here.

Trial lawyers, listen up.  Check your expert witness funding cap before settling for an “expert” you know is sub par.

In 1985, managers of 3 different restaurants were robbed and shot—each with two .38 caliber bullets.  The first two managers died. 

State v. Amos L. Small, 2013 WI App 117; case activity

Right to a public trial

The circuit court appropriately excluded a person from the courtroom under State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, after the prosecutor asserted the had threatened a state’s witness after her testimony. (¶9). While Small’s lawyer objected to the exclusion of the person on the grounds it violated Small’s right to a public trial and was based on a hearsay statement,

City of Port Washington v. David A. Thompson, 2012AP2500, District 2, 6/26/13; court of appeals opinion (1-judge; ineligible for publication); case activity

The trial court did not err in allowing Hackworthy, the state’s chemical test expert, to give her opinion that Thompson’s BAC at the time of driving was 0.15 based on average alcohol elimination rates and the results of a blood test taken about an hour after driving (with a result of 0.15) and a breath test taken about two hours after driving (with a result of 0.11).