On Point: 9. Medical diagnosis

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because absent the hearsay, there was no evidence tending to show that Dennis would be dangerous if treatment were withdrawn.

City of Chetek v. Daniel John McKee, 2017AP207, District 3, 3/15/18 (one-judge decision; ineligible for publication); case activity (including briefs)

McKee claimed he was justified in refusing to submit to a breath test under § 343.305(9)(a)5.c. because his chronic gastroesophageal reflux disorder (GERD) and resulting Barrett’s esophagus rendered him physically unable to take the test. (¶¶3-4). McKee sought to admit his medical records as evidence at the refusal hearing, but the circuit court sustained the prosecutor’s objection that they weren’t properly authenticated. (¶5). Further, based on the testimony of the arresting officer, the circuit court found McKee refused out of a concern for his job, not because of his medical condition. (¶¶6-7). The court of appeals rejects McKee’s challenges to the circuit court’s rulings.

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.

State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.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. David W. Domke, 2011 WI 95, reversing unpublished decision; for Domke: Martha K. Askins, SPD, Madison Appellate; case activity

Although Domke establishes deficient performance in several different respects, he fails to satisfy his burden of showing prejudice.

• Failure to object to hearsay testimony / medical treatment and diagnosis exception inapplicable to counselors and social workers.

decision below: unpublished; case activity

Issues (formulated by On Point):

Whether Domke was denied effective assistance of counsel by trial counsel’s: failure to object to inadmissible hearsay in the form of a social worker’s testimony reciting the complainant’s recitation of the alleged sexual assaults; producing, without first interviewing her, the complainant’s mother as a defense witness who proceeded to testify that she believed the complainant “100 percent.”

State v. Jimmie Lee Higgins, 2010AP861-CR, District 1, 2/1/11

court of appeals decision (3-judge, not recommended for publication); for Higgins: Ellen Henak, SPD, Milwaukee Appellate; case activity; Higgins BiC; State Resp.; Reply

Any error with respect to exclusion of the victim’s pretrial statement to the police in one instance, and admissibility of her statements to a nurse, would be harmless.