On Point: H. Hearsay, Ch. 908

State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity

A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.

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State v. Angus Murray McArthur, 2016AP2315-17-CR, 2/20/18, District 1 (not recommended for publication); case activity (including briefs)

This opinion recounts in detail MacArthur’s controlling, violent behavior toward K.W., the victim in this case, and toward 4 of his previous girlfriends. The lead issues are (1) whether McArthur’s conduct toward the previous girlfriends was admissible as “other acts” evidence, and (2) whether trial counsel was ineffective for not objecting when, during the jury trial, a detective read K.W.’s statement which described MacArthur’s “relationship rules” and his escalating violence toward her.  The court of appeals answers both questions “no.”

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.

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.

State v. J.L.B., 2016AP2358, District 4, 8/3/17 (one-judge decision; ineligible for publication); case activity

The circuit court erred in finding that a six-year-old child’s videotaped interview was admissible under § 908.08 because nothing in the interview showed the child understood the importance of telling the truth and that there are negative consequences to untruthfulness. See § 908.08(3)(c); State v.

State v. Frank V. Blonda, 2015AP2431-CR, 4/11/17, District 1, (not recommended for publication); case activity (including briefs).

 M.L., the victim in this case, called her sister, Vincenza, and allegedly told her that Blonda had hit her in the head with a telephone. Vicenza reported this to the police.  Later, M.L. told the DA’s victim advocate that she did not want to press charges, Blonda did not hit her with the phone, and she had been drinking and wasn’t sure how she had been injured. She also filed a victim impact statement, which said that her injury was due to an accident that happened in Blonda’s absence. Unfortunately, the State didn’t disclose these statements to Blonda until the first and second days of his trial.

State v. Victoria Ward, 2015AP2638-CR, 3/21/17, District 1 (not recommended for publication); case activity (including briefs)

To no avail, Ward challenges two evidentiary rulings the circuit court made at her trial on charges of being party to the crimes of maintaining a drug house and possession of heroin with intent to deliver.

State v. Earnest Lee Nicholson, 2015AP2154-CR & 2015AP2155-CR, 3/7/2017, District 1 (not recommended for publication); case activity (including briefs)

Nicholson challenges the validity of the no-contact order he was convicted of violating, and also argues his rights to confrontation and to testify were violated. The court of appeals rejects his claims.

State v. B.H., 2016AP892-893, District 1, 12/28/16 (1-judge opinion, ineligible for publication)

B.H.’s twins were taken from her due to a report of violence between her and their father. The trial court found that she had failed to meet the conditions for their return and to assume parental responsibility. B.H. argues that those findings rest upon inadmissible hearsay in the form of testimony from the foster mother and from a social worker and in the form of a letter from the Bureau. B.H. asserts that trial counsel’s failure to object to this evidence amount to ineffective assistance of counsel.