On Point blog, page 15 of 68
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State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)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State v. Jamey Lamont Jackson, 2017AP968-CR, Distirct 1, 3/6/18 (not recommended for publication); case activity (including briefs)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….”
Disorderly conduct isn’t a lesser included of unlawful use of a computerized communication system
State v. James C. Faustmann, 2017AP1932-CR, District 2, 3/7/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Under the test for lesser included offenses under § 939.66(1), disorderly conduct in violation of § 947.01(1) isn’t a lesser-included offense of unlawful use of a computerized communication system in violation of § 947.0125(2)(a).
Changes to rules of evidence regarding impeachment, bias take effect
The supreme court’s Order 16-02A, 2017 WI 92, effective January 1, 2018, amends some rules of evidence that apply frequently in criminal cases:
Defendant’s history of controlling and abusing girlfriends admissible as “other acts” evidence
State v. Angus Murray McArthur, 2016AP2315-17-CR, 2/20/18, District 1 (not recommended for publication); case activity (including briefs)
This opinion recounts in detail MacArthur’s controlling, violent behavior toward K.W., the victim in this case, and toward 4 of his previous girlfriends. The lead issues are (1) whether McArthur’s conduct toward the previous girlfriends was admissible as “other acts” evidence, and (2) whether trial counsel was ineffective for not objecting when, during the jury trial, a detective read K.W.’s statement which described MacArthur’s “relationship rules” and his escalating violence toward her. The court of appeals answers both questions “no.”
SCOW: Circuit courts may admit “other acts” evidence using a “greater latitude”/Sullivan analysis in new range of cases
State v. Anton R. Dorsey, 2018 WI 10, 1/25/28, affirming a per curiam court of appeals opinion, case activity (including briefs)
On Point has posted extensively about this case here regarding the court of appeals’ two opinions and here regarding Dorsey’s petition for review. This post focuses on the bottom line for trial lawyers because the majority opinion cements a change in Wisconsin law. Under common law, the “greater latitude rule” allows for the more liberal admission of “other acts” evidence in cases of sexual abuse particularly those involving children. Opinion ¶32. In 2013, the legislature amended §904.04(2)(b)1, and according to the majority, thereby extended this rule to a range of cases beyond child sexual abuse, including domestic abuse. Specifically :
Odor of marijuana is probable cause for search; text messages admissible as “panorama” or “other acts” evidence
State v. Willie Brownlee, Jr., 2015AP2319-CR, 11/21/17, District 1, (not recommended for publication); case activity (including briefs)
Two officers stopped Brownlee after he drove his rental car through a red light. One officer approached the driver’s side, the other approached the passenger side occupied by Brownlee’s friend. Both smelled the distinct odor of burnt marijuana. They ordered Brownlee and his friend out of the car and searched it. Guess what they found in the glove compartment?
SCOW will decide if excluding OWI homicide defendant’s evidence he wasn’t the driver was harmless
State v. Kyle Lee Monahan, 2014AP2187, petition for review of an unpublished COA decision granted 11/13/17; case activity (including briefs)
The parties and the state agree that the circuit court erred in excluding Kyle Monahan’s proffered GPS evidence from his trial; the only dispute in this appeal is whether that error is harmless beyond a reasonable doubt.
Defense evidence properly excluded for lack of foundation
State v. Scott F. Ufferman, 2016AP1774-CR, District 3, 11/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Ufferman complains the trial court’s evidentiary rulings improperly stymied his defense against the charge of operating with a detectable amount of THC. The court of appeals holds the trial court’s rulings were correct.