On Point blog, page 13 of 68
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State v. Frederick Eugene Walker, 2018AP186-CR, District 1, 11/27/18 (not recommended for publication); case activity (including briefs)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State v. Akim A. Brown, 2017AP1332-CR, District 1, 11/6/18 (not recommended for publication); case activity (including briefs)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State v. Johnnie Lee Tucker, 2017AP840-CR, District 1, 8/28/18 (not recommended for publication); case activity (including briefs)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.”
Video seems to show white robber in state’s other-acts evidence; COA, over dissent, upholds conviction of black defendant
State v. Darrin L. Malone, 2017AP680-CR, 9/26/18, District 2 (not recommended for publication); case activity (including briefs)
The disputed image is below. It’s of a similar robbery three days before the robbery for which Malone was convicted of felony murder (the other robber in that latter robbery–who testified against Malone–admitting shooting and killing the gas station clerk). The state showed the video of that earlier robbery to the jury, hoping to convince them that Malone did that one, and thus likely did the one he was being tried for, too. Showed it, that is, except for the 10 seconds including this frame, which seems to show a white person’s hand on the robber the state claimed was Malone. Malone is black.
Circuit court’s expert testimony rulings upheld
State v. Natalie N. Murphy, 2017AP1559-CR, 8/16/18 (not recommended for publication); case activity (including briefs)
To no avail, Murphy challenges the circuit court’s decision to exclude her expert’s testimony and its decision to allow certain testimony from the state’s expert.
Court of appeals rejects multiple challenges to TPR
State v. R.D.J., 2017AP547, 8/7/18, District 1 (one-judge decision; ineligible for publication); case activity
R.D.J. appeals the termination of his parental rights to his daughter, T.S.J. He argues that his lawyer was ineffective for not challenging the state’s expert’s report on Daubert and undue prejudice grounds, that his due process rights were violated because T.S.J.’s removal from the home made it impossible for him to show a substantial parental relationship, and that the CHIPS order itself established that such a relationship existed.
Witness ID of defendant sitting with two others wasn’t a “showup”; no IAC for not getting expert on eyewitness reliability
State v. Melvin Lidall Terry, 2017AP1625, 8/7/18, District 1 (not recommended for publication); case activity (including briefs)
Police arrested Terry, his girlfriend Carter, and his brother X.C. soon after, and in the vicinity of, a fatal shooting. The police seated the three on the curb and directed one man who had witnessed the shooting to “look over and identify who it was”; he identified Terry.
Jury learning PBT was requested not grounds for mistrial
State v. Dale R. Delvoye, 2017AP833, 7/3/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
At Delvoye’s OWI trial, an officer testified that as part of the stop he asked Delvoye to take a preliminary breath test. Counsel objected and moved for a mistrial. The trial court denied the mistrial, and the court of appeals affirms.
COA: Pharmacologist properly barred from testifying about stomach condition
State v. Paul E. Ayala, 2017AP1510, 7/3/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
Ayala was charged with OWI. A blood test showed a high level of Ambien in his system. He sought to defend on the ground of involuntary intoxication by presenting a pharmacologist’s testimony that he had a stomach condition that caused the drug to build up in his system.
Defense win on suppression of evidence relating to destroyed blood sample, loss on sanctions against County
County of Milwaukee v. Ross J. Romenesko, 2017AP1042-1044, 6/19/18, District 1, (1-judge appeal, ineligible for publication); case activity (including briefs)
Romenesko prevailed below–the circuit court (1) suppressed a revised report relating to his blood sample, (2) precluded but one of its experts from testifying, and eventually (3) dismissed the the OWI 1st offense and operating with a PAC 1st offense charges against him as a sanction against the County. The court of appeals affirmed the suppression decision but reversed the other 2 decisions.