On Point blog, page 12 of 68
Driver’s silence constituted refusal; subpoenaed urine test results were admissible
State v. Gerald J. Vanderhoef, 2016AP2052-CR, District 1, 4/30/19 (not recommended for publication); case activity (including briefs)
Vanderhoef’s silence in response to the “Informing the Accused” form constituted a refusal to consent to a chemical test, so the subsequent blood draw was unlawful. However, the state subpoenaed the results of his urine test, and that evidence was admissible.
Speedy trial, incompetence to go pro se, and freedom of religion claims fail on appeal
State v. Maries D. Addison, 2018AP55-57-CR, 3/26/19, District 1 (not recommended for publication); case activity (including briefs)
The court of appeals agreed that the 17-month delay in bringing Addison to trial was presumptively prejudicial, but based on the unique facts of this case, it held that his speedy trial rights weren’t violated. Addison did a fine job representing himself (he got “not guilty” verdicts on 5 of 22 counts) so his “incompetency to proceed pro se” claim went nowhere. Plus his freedom of religion claim (right to have a Bible with him during trial) failed because his argument was insufficiently developed.
Hearsay, its exceptions, and harmless error
State v. Christopher Deshawn McGinnis, 2017AP2224-CR, 3/5/19, District 1 (not recommended for publication); case activity (including briefs)
The court of appeals found certain hearsay statements admissible under the “statement against penal interest” and “prior inconsistent statement” exceptions to the hearsay rule. It also held that part of a detective’s testimony qualified as hearsay, but its admission was harmless error.
Court of appeals affirms admission of other acts evidence to prove child sexual assault
State v. Marco A. Lopez, Sr., 2018AP159-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs).
The State charged Lopez with child sexual assault of two victims and moved to admit the of testimony of two additional relatives who said that they were also assaulted by Lopez for years when they were the same ages as the victims. Lopez conceded the first two elements of the “other acts” evidence test. State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), §904.04(2) and §904.03. He argued that the trial court incorrectly weighed the probative value of the evidence against the danger of unfair prejudice.
Challenges to search warrant rejected
State v. Andrew Anton Sabo, 2017AP2289-CR, District 1, 1/29/19 (not recommended for publication); case activity (including briefs)
Sabo challenges the search warrant that led to the seizure of evidence from his home, arguing that the affidavit in support of the warrant didn’t establish probable cause, that he is entitled to a Franks-Mann hearing because the affidavit contained false information, and that the identity of the citizen informant who was the source of much of the information in the affidavit should be disclosed because there are reasons to doubt the informant’s reliability and credibility. The court of appeals disagrees.
Circuit court erred in ordering disclosure of confidential informant
State v. Robert Billings, 2017AP2272-CR, District 1, 1/15/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Billings sought disclosure of the identity of the confidential informant who supplied information that was used to get a search warrant for his apartment. The circuit court granted his request. The circuit court erroneously exercised its discretion because it didn’t apply the correct legal standard.
Court of appeals sacks newly-discovered evidence and other claims to affirm homicide conviction
State v. Danny L. Wilber, 2016AP260, 12/26/18, District 1 (not recommend for publication); case activity (including briefs)
“This case involves a dual tragedy: the death of one innocent man and the conviction of another.” (Initial Brief at 1). Not one of the many eyewitnesses to this homicide, which occurred during a large house party, saw Wilber shoot Diaz, the deceased. In fact, Diaz was shot in the back of the head and fell face first toward Wilber, not away from him. The State’s theory was that the shot spun Diaz around causing him to fall toward the shooter. It offered no expert to prove that this was possible.
Mother’s testimony didn’t vouch for daughter’s honesty in violation of Haseltine rule
State v. Frederick Eugene Walker, 2018AP186-CR, District 1, 11/27/18 (not recommended for publication); case activity (including briefs)
Walker challenges his child sexual assault conviction, arguing the complaining witness’s mother improperly vouched for her daughter’s honesty. He also argues the trial court wrongly excluded evidence of the complaining witness’s sexual activity with another person. The court of appeals rejects his claims.
Failure to develop defendant’s testimony, object to hearsay didn’t prejudice defense
State v. Akim A. Brown, 2017AP1332-CR, District 1, 11/6/18 (not recommended for publication); case activity (including briefs)
Brown, charged with second degree sexual assault of L.S., testified their sexual encounter was consensual. He argues trial counsel was ineffective for failing to elicit from him certain testimony that would have helped show the encounter was consensual and for failing to object to testimony about L.S.’s prior consistent statements. The court of appeals concludes counsel’s shortcomings didn’t prejudice Brown’s defense.
Detective’s narrative of events shown on surveillance videos properly admitted under lay opinion rule
State v. Johnnie Lee Tucker, 2017AP840-CR, District 1, 8/28/18 (not recommended for publication); case activity (including briefs)
Applying State v. Small, 2013 WI App 117, 351 Wis. 2d 46, 839 N.W.2d 160, and the lay opinion rule, § 907.01, the circuit court properly allowed a detective to narrate the events recorded on multiple surveillance cameras based on his having viewed the recordings “many times.”