On Point blog, page 1 of 11
COA affirms OWI conviction at trial, finding that nontestifying witness’s statements to 911 operator were not testimonial and defendant not subjected to custodial interrogation.
State v. Nelson Holmes, 2024AP1121, District I, 6/17/25 (one-judge decision; ineligible for publication); case activity
The COA affirmed Nelson Holmes’ conviction at trial of operating a vehicle under the influence and with a prohibited alcohol concentration, finding that a witness’s statements to a 911 operator were not testimonial and were admissible as present sense impressions, and that Holmes was not subjected to custodial interrogation when he made incriminating statements to police.
Defense Win: COA holds that circuit court wrongly limited defendant’s testimony; holds error is not harmless
State v. Derek J. Jarvi 2023AP2136-CR, 6/12/25, District IV (not recommended for publication); case activity
Despite the State’s efforts to overturn Jarvi’s postconviction win of a new trial, the court of appeals rejects the State’s evidentiary arguments and holds that it failed to prove harmless error in this case.
COA rejects challenges to finding of dangerousness, incompetency to refuse medication and upholds trial court’s decision to admit expert’s report at 51 hearing
Winnebago County v. C.J.H., 2023AP1263, 3/6/24, District II (one-judge decision; ineligible for publication); case activity
In a 51 appeal presenting several commonly litigated issues, COA finds no error and affirms.
Defense win! Absent hearsay, evidence insufficient for ch. 51 extension
Winnebago County v. D.E.S., 2023AP460, 9/20/23, District 2 (one-judge decision; ineligible for publication); case activity
This is a nice case to know, both for its careful, thorough analysis of a common ch. 51 problem–commitments based entirely or extensively on hearsay–and its collection of other cases analyzing the same issue. The sole witness at D.E.S. (“Dennis”)’s extension hearing was a Dr. Anderson, who had witnessed none of the behaviors she relied on to conclude that Dennis was dangerous, instead reading them from his institutional records. Over objection, the trial court relied on them anyway. The court of appeals now reverses the commitment because absent the hearsay, there was no evidence tending to show that Dennis would be dangerous if treatment were withdrawn.
Defense Win! COA rejects “case manager exception” to hearsay rules and reverses recommitment
Brown County v. Z.W.L., 2022AP2201, District 3, 9/12/23 (one-judge decision; ineligible for publication); case activity (briefs not available)
In yet another hearsay-based sufficiency challenge to a Chapter 51 commitment, Z.W.L. (“Zeb”) succeeds because the circuit court relied on inadmissible hearsay and no other evidence established that Zeb was dangerous. Specifically, while Zeb made admissible “party-opponent” statements to a crisis worker and a police officer, the county failed to call either direct witness to Zeb’s statements and instead relied on two witnesses who read about Zeb’s history. While the circuit court relied on a case manager’s testimony because “this is what case managers are supposed to do” and “to me, that’s an exception to any of the hearsay rules,” the court of appeals disagrees.
Defense Win! Recommitment reversed based on erroneous admission of hearsay testimony
Waupaca County v. G.T.H., 2022AP2146, District IV, 8/24/23, 1-judge decision ineligible for publication; case activity (briefs not available)
Contrary to what has seemed like a steady stream of unsuccessful hearsay-based Chapter 51 appeals, see e.g., here, here, here, here, and here, G.T.H. succussfully convinces the court of appeals to reverse his recommitment, which was based on extensive hearsay testimony.
COA holds challenge to late ch. 51 extension hearing judicially estopped; says hearsay statements not plain error
Outagamie County v. C.J.A., 2022AP230, 2/17/23, District 3 (one-judge decision; ineligible for publication); case activity
“Catherine” appeals the extension of her ch. 51 commitment. The recommitment hearing was originally set for a few days before her previous extension would expire. But three days before that scheduled hearing, Catherine requested an independent examination. She, the court, and the county agreed to a “stipulation for temporary extension to commitment” for 60 days. The final hearing was held near the end of this 60 days, 57 days after her commitment had been set to expire before the stipulation.
Merging clearer audio recorded on separate device with video of child’s statement didn’t make recording inadmissible
State v. Joseph M. Marks, 2022 WI App 20; case activity (including briefs)
Given the facts in this case, the court of appeals rejects the defendant’s claim that an audiovisual recording of a child’s statement was inadmissible under § 908.08 because investigators merged a separate audio file of the interview with the video to correct a problem with the original audio.
No error in excluding text message containing purported apology for getting defendant in trouble
State v. Salar Zangana, 2020AP1228-CR, District 1, 6/29/21 (one-judge decision; ineligible for appeal); case activity (including briefs)
At his trial on battery and disorderly conduct charges, Zangana tried to introduce a text message he received that purported to be an apology one of the complaining witnesses. (¶¶2-4). The message was properly excluded as hearsay and evidence about what the message meant was inadmissible because it involved privileged communication between spouses.
Court of appeals addresses pretrial rulings on other acts, use of audiovisual recording
State v. Omar S. Coria-Granados, 2019AP1989-CR, District 4, 2/11/21 (not recommended for publication); case activity (including briefs)
In this child sexual assault the circuit court denied the state’s motions to admit other-acts evidence under § 904.04(2) and to allow the use of an audiovisual statement of a complainant under § 908.08. In a long (39 page) decision addressing the multiple legal questions and fact specific issues, the court of appeals reverses the circuit court’s other-acts order but affirms the denial of the motion to admit the audiovisual statement.