On Point blog, page 1 of 1
SCOW to review admission of video statements by children and the forfeiture doctrine
State v. Angel Mercado, 2018AP2419-CR, petition for review of a published decision granted 5/19/20; reversed 1/20/21; case activity
Issues (from the State’s petition for review):
1. Did the court of appeals contravene §901.03(1)(a) when it directly reviewed Mercado’s forfeited challenges to the admission of the victims’ forensic interview videos into evidence?
2. Did the circuit court court properly admit the victims’ forensic interview videos into evidence at trial?
Circuit court erred in admitting video statements of children under § 908.08
State v. Angel Mercado, 2020 WI App 14, petition for review granted, 5/19/20; reversed 1/20/20; case activity (including briefs)
The court of appeals orders a new trial for Mercado on the grounds the circuit court erred in admitting the video statements of three children who accused him of sexually assaulting them. The circuit court didn’t comply with the requirements of § 908.08(2) and (3) in admitting the videos, and the videos also weren’t admissible under the residual hearsay exception or as prior inconsistent statements.
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.
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.
Ineffective Assistance of Counsel
State v. Michael A. Clements, 2010AP1978-CR, District 4, 10/13/11
court of appeals decision (not recommended for publication); for Clements: Steven D. Grunder, SPD, Madison Appellate; case activity
Counsel’s performance not deficient, against claims that he failed to: impeach the complainant with a prior recorded statement; object on hearsay grounds to admissibility of her statement to a school counselor; object to the State’s closing-argument characterization of the sole defense witness;
State v. Victor T. Jackson, 2009AP851-CR, District I, 4/6/10
court of appeals decision (3-judge; not recommended for publication); for Jackson: Byron C. Lichstein; BiC; Resp.; Reply
Hearsay, Child Sexual Assault, Residual Exception
Statements by youthful sex assault complainants admissible under residual hearsay exception, court rejecting idea that it’s thereby allowing exception to swallow general rule against hearsay admissibility; confrontation objection forfeited).
Counsel – Strategic Basis for Failing to Adduce Alibi Witness
Counsel’s failure to have potential alibi witnesses testify was reasonable strategy,
Hearsay – Residual Exception, § 908.045(6)
State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶59 We agree with the State that while Krnak’s statement to Ellifson does not technically qualify as an excited utterance, or statement of recent perception due to timing problems, it does qualify under the residual hearsay exception because it contains several guarantees of trustworthiness similar to those found in statements admitted under the excited utterance exception….
Residual Exception, § 908.03(24): Videotaped Statements of Children
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A child’s videotaped statement may be admitted under the residual exception, § 908.03(24), without satisfying all the requirements of § 908.08. ¶40. The trial court properly applied the trustworthiness test of State v. Sorenson, 143 Wis. 2d 226, 245-46,
Hearsay – Residual Exception — Child Sexual Assault Victim
State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02
Issue/Holding: Child-sexual-assault-victim’s hearsay statement in this revocation case satisfies test for admissibility under residual exception, State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).
Hearsay – “Residual” Exception, § 908.45(6)
State v. Liliana Petrovic, 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999)
For Petrovic: Robert B. Rondini
Holding: While executing a search warrant at Petrovic’s home, a detective talked to her 5-year old daughter, who gave him information about 39 marijuana plants growing outside. She ended up being tried with and convicted of manufacturing THC. Petrovic challenges admissibility of daughter’s hearsay statements to the detective, and to evidence showing her affiliation with the Outlaws motorcycle gang.