On Point blog, page 14 of 68
Evidence defendant shot a gun at prior incident was admissible
State v. Terrell Dawon Essex, 2017AP1509-CR, District 1, 5/15/18 (not recommended for publication); case activity (including briefs)
Essex was on trial for being a felon in possession of a firearm and first degree reckless homicide of a man named Dotson by use of a dangerous weapon. The circuit court allowed the state to present evidence that on a prior occasion Essex used the same firearm involved in Dotson’s shooting. The court of appeals holds the evidence was admissible.
Evidence at OWI trial established sufficient chain of custody of blood sample
City of Berlin v. Ricardo A. Adame, 2017AP2130, District 2, 4/18/18 (one-judge decision; ineligible for publication); case activity (including briefs)
There was a sufficient chain of custody evidence to conclude that the blood-alcohol test results offered into evidence by the state related to blood samples taken from Adame.
Daubert’s teeth still missing
State v. Anthony Jones, 2018 WI 44, 5/4/2018, affirming an unpublished summary order, 2015AP2665, case activity
We noted in our post on the grant of Jones’s PFR that at the time there were “exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert.” That’s still true.
SCOW: Affidavits that co-conspirators framed defendant don’t support new trial
State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity
A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.
Court rejects several challenges to homicide trial conviction
State v. Dakota R. Black, 2017AP837, 3/22/18, District 4 (not recommended for publication); case activity (including briefs)
A jury convicted Black of the homicide of B.A.T., a five-year-old child in his care; the child was bruised and died of subdural hemorrhages. Black defended on the theory that the child’s injuries came in a fall, either on the stairs or on the playground.
Circuit court properly rejected claim that refusal was justified due to physical disability or disease
City of Chetek v. Daniel John McKee, 2017AP207, District 3, 3/15/18 (one-judge decision; ineligible for publication); case activity (including briefs)
McKee claimed he was justified in refusing to submit to a breath test under § 343.305(9)(a)5.c. because his chronic gastroesophageal reflux disorder (GERD) and resulting Barrett’s esophagus rendered him physically unable to take the test. (¶¶3-4). McKee sought to admit his medical records as evidence at the refusal hearing, but the circuit court sustained the prosecutor’s objection that they weren’t properly authenticated. (¶5). Further, based on the testimony of the arresting officer, the circuit court found McKee refused out of a concern for his job, not because of his medical condition. (¶¶6-7). The court of appeals rejects McKee’s challenges to the circuit court’s rulings.
Court of Appeals rejects challenges to child sexual assault convictions
State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)
In this lengthy decision, the court of appeals rejects multiple challenges Gregory makes to his convictions for child sexual assault that occurred in 1997.
Other-acts evidence proper; prosecutor’s closing improper, but not prejudicial
State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)
Evidence that Rogers was identified as a passenger in a vehicle reported stolen was properly admitted in his armed robbery trial because it provided “context” and “background” to one of the robbery charges for which he was on trial. And while the prosecutor made in improper argument in rebuttal closing because it wasn’t based on any evidence whatsoever, the argument wasn’t prejudicial.
Lineup procedure was not suggestive
State v. Jamey Lamont Jackson, 2017AP968-CR, Distirct 1, 3/6/18 (not recommended for publication); case activity (including briefs)
Jackson argues his trial lawyer should have moved to suppress the identifications of him in a live lineup viewed by three eyewitnesses to a crime. He claims the identification procedure was impermissibly suggestive because, before the witnesses were interviewed about whether they could identify anyone in the lineup, one witness asked to view the person in position number five (Jackson) again and therefore suggested to the other witnesses who they should identify. (¶¶3, 11). The court of appeals disagrees.
Child protective services case worker properly allowed to give lay opinion testimony
State v. B.D.H., 2017AP2390 & 2017AP2391, District 1, 3/6/18 (one-judge decision; ineligible for publication); case activity
At B.D.H.’s TPR trial her case worker testified that, in her opinion, B.D.H. wouldn’t be able to meet the conditions set by a CHIPS order for the return of her children within the statutory timeframe. The testimony was admissible under § 907.01, which allows lay opinion testimony if it is “(1) [r]ationally based on the perception of the witness[;] (2) [h]elpful to a clear understanding of the witness’s testimony or the determination of a fact in issue,” and “(3) [n]ot based on scientific, technical, or other specialized knowledge….”