On Point: 15. Evidence

State v. Anton R. Dorsey, 2015AP648-CR, District 3, 12/6/16 (per curiam; not citable as precedent or for persuasive value), petition for review granted, 4/10/17, affirmed, 2018 WI 10; case activity (including briefs)

You may not cite this per curiam opinion as binding precedent or for persuasive value in any Wisconsin court, see § 809.23(3)(b), but On Point is telling you about it because the court of appeals concludes that the purported “greater latitude” rule in § 904.04(2)(b)1. is not a codification of the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases. While you can’t cite this decision for authority, you may and should use the court’s reasoning for its conclusion to counter the claim of a prosecutor or circuit judge that § 904.04(2)(b)1. codifies a “greater latitude” rule.

State v. Connie Mae Apfel, 2016AP188-CR, District 3, 11/29/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court properly exercised its discretion in admitting extrinsic evidence of the complaining witness’s statements to the police as prior inconsistent statements under §§ 908.01(4)(a)1. and 906.13(2)(a) after the witness expressed reluctance to testify and said he didn’t remember what he told police.

Review of an unpublished court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?

(2)  When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?

State v. Ali Garba, 2015AP1243-CR, District 2, 10/5/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Garba wanted to present testimony from two expert witnesses about possible reliability problems with the gas chromatography tests of his blood, but the circuit court wouldn’t let him. The court of appeals holds the circuit court properly exercised its discretion and rejects Garba’s claim the ruling violated his right to present a defense.

State v. Steven N. Jackson, 2015AP2682, 9/22/16, District 4 (1-judge decision; ineligible for publication); case activity (including briefs)

Steven Jackson was arrested for OWI and also charged with a refusal to submit to a blood test. On appeal of the refusal, he first argues that the officers lacked probable cause to arrest him.

Review of an unpublished court of appeals opinion; case activity (including briefs)

Issues (composed by On Point)

Whether Nieves’s confrontation right was violated when the trial court permitted a witness to testify about a non-testifying co-defendant’s confession that, by implication, inculpated Nieves.

Whether a surviving victim’s testimony that someone had told him Nieves was planning to kill him was admissible to show how the victim “felt.”

Whether trial counsel was ineffective for failing to investigate an alibi evidence that could have placed Nieves in Illinois on the night of the shooting.

State v. Lory F. Kerk, 2015AP2608-CR, District 3, 9/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court didn’t err in allowing the state to elicit testimony from its expert toxicologist that Kerk was impaired by the amount of alcohol and prescription drugs found in her blood.

State v. Gary Abdullah Salaam, 2014AP2666-CR & 2667-CR, 9/13/2016, District 1 (Not recommended for publication); case activity (including briefs)

Salaam raises four claims challenging his convictions, at jury trial, of recklessly endangering safety, being a felon in possession of a firearm, and three counts of witness intimidation. The court affirms as to the first two counts but finds insufficient evidence as to the witness intimidation charges.

Oconto County v. Jonathan E. Van Ark, 2015AP1415, 8/23/16; District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

Van Ark was sitting in his parked pickup truck when a deputy approached him, smelled alcohol, saw his glossy, blood-shot eyes, and observed his slow, slurred speech.  A subsequent hospital blood draw indicated that Van Ark had a .237 BAC. The State charged him with OWI and operating with a Prohibited Alcohol Concentration and moved for directed verdicts on both counts. The circuit court denied a directed verdict on the OWI charge, but granted it on the PAC charge. The court of appeals reversed based on WIS JI–CRIMINAL 2660A.

State v. D.L., 2016AP735 & 2016AP736, District 1, 8/18/16 (one-judge decision; ineligible for publication); case activity

The trial court didn’t err in admitting multiple hearsay statements made by D.L.’s children about her treatment of them or in admitting expert testimony about whether D.L. had a “strong bond” or “positive and healthy relationships” with her children.