On Point blog, page 1 of 1
Defense win! Trial counsel should have objected to gang affiliation references and introduced other evidence
State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20, District 1 (not recommended for publication); case activity (including briefs)
A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.
Changes to rules of evidence regarding impeachment, bias take effect
The supreme court’s Order 16-02A, 2017 WI 92, effective January 1, 2018, amends some rules of evidence that apply frequently in criminal cases:
No IAC for implying prior OWIs; stipulation to three priors valid; no issue preclusion on number of priors
State v. Bruce T. Henningfield, 2015AP1824-CR, 3/15/17 (not recommended for publication); case activity (including briefs)
Bruce Henningfield was convicted by a jury of OWI and PAC counts, and was sentenced on the OWI as a tenth or subsequent offense. He raises three issues related to his prior convictions; the court rejects them all.
Counsel not ineffective in handling impeachment of defendant, defense witness with prior convictions
State v. Christopher J. McMahon, 2015AP2632-CR, District 3, 1/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)
McMahon’s trial attorney wasn’t ineffective for failing to shield McMahon and another defense witness from impeachment using a prior conviction.
Third trial not a charm
State v. Tyron James Powell, 2014AP1053-CR, District 1, 3/24/15 (not recommended for publication); click here for docket and briefs
After obtaining two mistrials, Powell probably thought he’d get lucky the third time around. Instead, he got a conviction followed by a court of appeals decision that rejected his arguments on impeachment evidence, on the admission of his prior convictions and on his trial lawyer’s ineffectiveness for failing to file a suppression motion.
Effective Assistance – Discovery
State v. Eric Dominique Lesueur, 2011AP1550-CR, District 3, 6/26/12
court of appeals decision (not recommended for publication); case activity
By not asserting a discovery violation, for the State’s failure to provide a CD of a witness interview, trial counsel waived any potential issue, and review is limited to counsel’s effectiveness, ¶5. Lesueur can’t meet his burden of IAC-prejudice:
¶8 Lesueur did not establish Strickland prejudice.
Expert Testimony; Impeachment – Prior Convictions
State v. Olu A. Rhodes, 2009AP25-CR, District 1, 11/22/11
court of appeals decision (not recommended for publication), on remand from, 2011 WI 73; for Rhodes: John J. Grau; case activity
Expert witness qualification rests in the sound discretion of the trial court; here, it was well within that discretion to allow the following testimony:
¶4 Marchant, who described herself as a “criminal intelligence analyst” working for the Department of Justice,
Cross-Examination – Limitations – Witness’s Mental Health; Inadequate Argumentation – Loss of Argument
State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11
court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity
Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense,
Impeachment — Prior Convictions, § 906.09
State v. Gary M.B., 2003 WI App 72, affirmed, 2004 WI 33
For Gary M.B.: T. Christopher Kelly
Issue/Holding:
¶24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶9.) The statute reflects the presumption that “a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted.”
Character — Defendant’s Record Used to Cross-Examine Alibi Witnesses
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether the prosecutor properly cross-examined an alibi witness as to what the defendant had told him about his prior offense.
Holding:
¶21. Further, even if the 1992 conviction could have been properly admitted, using this evidence on cross-examination was improper. Other acts evidence is admitted for a specific purpose.