On Point blog, page 4 of 11
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Review of an unpublished court of appeals opinion; case activity (including briefs)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.
State court’s exclusion, on hearsay grounds, of exculpatory evidence didn’t violate right to present defense
Wayne Kubsch v. Ron Neal, 7th Circuit Court of Appeals No. 14-1898, 8/12/15
After being convicted of murdering his wife, her son, and her ex-husband, Kubsch was sentenced to death. He challenged his conviction and sentence in a federal habeas proceeding on three grounds: (1) the Indiana trial court excluded evidence of a witness’s exculpatory hearsay statement to police; (2) his trial counsel was ineffective in seeking admission of the witness’s hearsay statement; and (3) his waiver of counsel and choice to represent himself at the sentencing phase of his trial were not knowing and voluntary. The court, over a dissent by one judge as to the first and second claims, rejects Kubsch’s arguments.
Seventh Circuit rejects habeas claim, but cautions about improper use of “course of investigation” rationale for getting around hearsay objections
Renardo Carter v. Timothy Douma, 7th Circuit Court of Appeals No. 13-3312, 8/6/15
Carter’s trial counsel failed to object to a police officer’s testimony about the hearsay statements of a confidential informant who said Carter was involved in drug dealing. While the Wisconsin Court of Appeals reasonably concluded that the failure to object didn’t prejudice Carter, the Seventh Circuit issues a useful warning about the improper use of the “course of investigation” rationale for admitting out-of-court statements.