On Point: 15. Evidence

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?

State v. Richard A. Boie, 2019AP520, 3/5/20, District 4 (not recommended for publication); case activity (including briefs)

Boie appeals his jury-trial conviction for repeated sexual assault of the same child and the denial of his postconviction motion. He raises issues arising from the videotaped interview of his accuser, admitted under Wis. Stat. § 908.08. On the video, the then-six-year-old described assaults occurring when she was four and five years old. At trial, though, the now-nine-year old testified she couldn’t remember some of the things she spoke about in the video. Boie argues the statutory guidelines for admission weren’t met, and separately that his lawyer was ineffective for not moving for mistrial once the memory problems became clear.

State v. D.L., 2019AP2331, District 1, 3/10/20; (1-judge opinion, ineligible for publication); case activity

The State petitioned to terminate D.L.’s parental rights to Y.P.-T.  for failure to assume parental responsibility in January 2017 and lost at a jury trial. So when the State filed a new T.P.R. proceeding in October 2018, D.L. moved the circuit court to instruct the jury instructed that he had a substantial relationship with Y.P-T for the first 20 months of her life. The circuit court denied the motion, and the court of appeals affirmed.

State v. Ryan C. Diehl, 2020 WI App 16; case activity (including briefs)

At Diehl’s trial for operating with a blood-alcohol content exceeding .02, the state asked the arresting officer and Diehl himself multiple questions that invited the jury to infer he had multiple OWI convictions. Because these questions were irrelevant and unfairly prejudicial, trial counsel was ineffective for failing to object to them, and Diehl is entitled to a new trial.

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.

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

State v. Edward L. Body, Sr., 2019AP836, 1/22/20, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Body appeals the sentence he received after the revocation of his probation. He claims the circuit court erred in considering his gender and unproven allegations contained in the PSI. He also argues the sentence–one year in jail for a repeater disorderly conduct–is unduly harsh. The court of appeals rejects all three claims.

State v. Dobbs, 2018AP319-CR, petition for review of a per curiam opinion granted 1/14/20; case activity (including briefs)

Issues (based on Dobbs’ petition for review and SCOW’s order granting review:

1. Did the trial court err in precluding the defense’s expert on false confessions from testifying where, consistent with State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, his opinions were relevant to a material issue, but he would not be offering an opinion on the specific facts of the case?

2. Did the trial court err in allowing Mr. Dobbs’ statements to law enforcement into evidence despite the delay in reading him his Miranda rights and because his statements were involuntary due to his mental and physical conditions?

3. Whether the court of appeals’ decision that Dobbs was in custody for purposes of Miranda warnings is consistent with State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23. If not, whether Morgan should be overruled?

State v. Andre David Nash, 2018AP1595-CR, 1/7/20, District 1 (not recommended for publication); case activity (including briefs).

Under Wisconsin law, once a defendant shows that an out-of-court identification procedure is impermissibly suggestive, the State has the burden of demonstrating that the identification was still reliable and should be admitted into evidence. Powell v. State, 86 Wis. 2d 51, 66 271 N.W.2d 610 (1978). In this case, the court of appeal held that the circuit court improperly shifted the burden of proof to the State, and so reversed.

Pennsylvania, like Wisconsin, has a statute permitting the prosecution at a drunk-driving trial to introduce evidence that a defendant refused a requested blood draw. Do such statutes comply with the Fourth Amendment where the defendant refused a warrantless blood draw and no constitutional exception applied? For an argument that they don’t, see the cert petition filed last month in Thomas Bell v. Pennsylvania.