On Point blog, page 4 of 12
Convictions for battery, violation of no contact order upheld
State v. Earnest Lee Nicholson, 2015AP2154-CR & 2015AP2155-CR, 3/7/2017, District 1 (not recommended for publication); case activity (including briefs)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.
Counsel’s failure to object to hearsay and opinion evidence was not ineffective
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.
Reluctant, forgetful witness’s statements to police properly admitted as prior inconsistent statements
State v. Connie Mae Apfel, 2016AP188-CR, District 3, 11/29/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court properly exercised its discretion in admitting extrinsic evidence of the complaining witness’s statements to the police as prior inconsistent statements under §§ 908.01(4)(a)1. and 906.13(2)(a) after the witness expressed reluctance to testify and said he didn’t remember what he told police.
State v. Raymond L. Nieves, 2014AP1623-CR, petition for review granted 9/13/16
Review of an unpublished court of appeals opinion; case activity (including briefs)
Issues (composed by On Point)
Whether Nieves’s confrontation right was violated when the trial court permitted a witness to testify about a non-testifying co-defendant’s confession that, by implication, inculpated Nieves.
Whether a surviving victim’s testimony that someone had told him Nieves was planning to kill him was admissible to show how the victim “felt.”
Whether trial counsel was ineffective for failing to investigate an alibi evidence that could have placed Nieves in Illinois on the night of the shooting.
TPR court didn’t err in admitting children’s hearsay statements or expert “bonding” testimony
State v. D.L., 2016AP735 & 2016AP736, District 1, 8/18/16 (one-judge decision; ineligible for publication); case activity
The trial court didn’t err in admitting multiple hearsay statements made by D.L.’s children about her treatment of them or in admitting expert testimony about whether D.L. had a “strong bond” or “positive and healthy relationships” with her children.
Defense wins new trial due to trial court’s failure to sever codefendants
State v. Raymond L. Nieves, 2014AP1623-CR, 4/5/16, District 1 (recommended for publication, but not published); petition for review granted 9/13/16; case activity (including briefs).
This case explores the line between Bruton v. U.S., 391 U.S. 123 (1968)(which holds that at a joint trial the confession of one defendant is inadmissible against the co-defendant unless the confessing defendant testifies and is subject to cross examination) and Richardson v. Marsh, 481 U.S. 200 (1987)(which holds that a non-testifying defendant’s written confession can be admitted if it is redacted to eliminate all references to his co-defendant). Nieves and his codefendant, Maldonado, were accused of 1st degree intentional homicide. The trial court denied severance and allowed a witness testify about Maldonado’s confession while repeatedly use the term “they” (implicating Maldonado and Nieves). The court of appeals ordered a new trial because admission of the confession evidence violated the Confrontation Clause.
Audiovisual recording of child victim’s forensic interview was properly admitted
State v. Beverly Reshall Holt, 2013AP2738-CR, 3/8/16, District 1 (not recommended for publication); case activity (including briefs)
The trial court did not err in admitting the audiovisual recording of the forensic interview of Caleb, one of the child victims, at Holt’s trial for child sexual assault.
Dying declaration properly admitted
State v. Anthony R. Owens, 2016 WI App 32; case activity (including briefs)
The circuit court properly admitted the victim’s statements about who shot him under the dying declaration exception to the hearsay rule, and the admission of the victim’s statements didn’t violate the Confrontation Clause.
Counsel ineffective; failed to challenge credibility in swearing contest
State v. Rafael D. Honig, 2016 WI App 10; case activity (including briefs)
Honig, convicted at trial of two first-degree child sexual assaults, asserts that his trial counsel mishandled three issues bearing on the credibility of his accusers; the court of appeals agrees.
Statements on 911 call and to police at the scene admissible under excited utterance exception to hearsay rule
State v. Shironski A. Hunter, 2014AP2521-CR, District 1, 9/15/15 (not recommended for publication); case activity (including briefs)
The trial court didn’t err in admitting statements witnesses made during a 911 call and to police at the scene of the crime because the statements were excited utterances. Moreover, the statements weren’t testimonial for Confrontation Clause purposes, so admitting them didn’t violate the defendant’s right to confront the witnesses against him.