On Point: 15. Evidence

State v. Gary Lee Wayerski, 2015AP1083-CR, District 3, 10/31/17 (not recommended for publication), petition for review granted 3/13/18, and modified, and afford as modified, 2019 WI 11; case activity (including briefs)

Rejecting Wayerski’s argument to the contrary, the court of appeals holds that a police officer alleged to have sexually assaulted two teenage boys could be convicted under § 948.095(3)(a), which prohibits a person over age 21 “who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children” from having sexual contact or sexual intercourse with a child “whom the person works or interacts through that occupation or volunteer position.” The court also rejects the challenges Wayerski makes to the conduct of his trial.

City of West Bend v. Rebecca L. Smith, 2016AP2170, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Smith appeals her jury-trial conviction for OWI. She argues that the court erroneously admitted, over hearsay objection, the computer aided dispatch activity report indicating the times that the police took various actions. She also seeks reversal based on the admission of expert testimony opining as to her BAC by the technique of retrograde extrapolation.

State v. Charles A. Page, 2017AP165-CR, District 4, 10/12/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Page claims that the circuit court erred when it classified evidence he sought to introduce as “other acts” evidence and then excluded the evidence because Page hadn’t filed a timely pretrial motion to admit the evidence. He also contends the circuit court abandoned its role as a neutral magistrate in its questioning of Page at trial. The court of appeals rejects the claims.

State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point):

1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?

2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?

3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?

4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?

5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?

M.R.B. v. S.S., 2017AP1217-1219, 10/5/17, District 4 (1-judge opinion, ineligible for publication); case activity

This slim opinion delivers hard blows to a father resisting the termination of his parental rights. They concern circuit court competency, a request for a continuance, and the sufficiency of evidence in determining whether termination was in the best interests of his children. The court of appeals’ reasoning on the last point supplies fodder for a petition for review.

State v. Adam M. Zamora, 2016AP1923-CR, District 2, 9/27/17 (not recommended for publication); case activity (including briefs)

The circuit court properly exercised its discretion in determining that an expert witness called to testify about child sexual assault victim reporting behaviors met the so-called Daubert standard codified in § 907.02(1).

State v. David McAlister, Sr., 2014AP2561, petition granted 9/11/17; affirmed 4/18/18; case activity (including briefs)

Issues (copied from petition for review)

1. The central issue at trial was whether McAlister participated in the charged robberies. The state’s evidence on that point consisted entirely of the allegations of two confessed participants seeking to mitigate the consequences of their own misconduct. The jury knew that the state’s witnesses had a motive to falsely accuse McAlister but those witnesses denied under oath having done so. Under these circumstances, is newly discovered evidence from three separate witnesses swearing that the state’s witnesses admitted prior to trial that they intended to falsely accuse McAlister “cumulative” and “merely tend to impeach the credibility of witnesses” such that it could not support a newly discovered evidence claim?

2. Whether the allegations of McAlister’s §974.06 motion were sufficient to require a new trial and therefore an evidentiary hearing on his claim.

Review of a summary order of the court of appeals; affirmed 5/4/18; case activity (including briefs)

Issues (from the petition for review):

Anthony Jones was committed under Wis. Stat. ch. 980 after a trial at which the state presented expert testimony relying in part on two actuarial instruments: the MnSOST-R and the RRASOR. Mr. Jones had moved pretrial to exclude these instruments as unreliable under Wisconsin’s new Daubert standard, because they are decades old and were constructed using questionable means. The circuit court permitted their introduction on the ground that they are still in use and that the state’s expert had testified that they are reliable. Did the court adequately scrutinize the instruments for reliability, as is its responsibility under Daubert?

Dodge County v. L.A.S., 2017AP302, District 4, 8/17/17 (one-judge decision; ineligible for publication); case activity

Under § 51.20(9)(a) the circuit court must appoint two licensed physicians or psychologists to examine and write reports on an individual subject to involuntary commitment proceedings. This requirement applies only to the initial commitment proceeding, not to the proceeding to extend a commitment.

State v. J.L.B., 2016AP2358, District 4, 8/3/17 (one-judge decision; ineligible for publication); case activity

The circuit court erred in finding that a six-year-old child’s videotaped interview was admissible under § 908.08 because nothing in the interview showed the child understood the importance of telling the truth and that there are negative consequences to untruthfulness. See § 908.08(3)(c); State v.