On Point: 15. Evidence

State v. Wade M. Richey, 2014AP1758-CR, District 3, 3/17/15 (not recommended for publication); case activity (including briefs)

In this prosecution for reckless driving causing great bodily harm and homicide by operating with a detectable amount of a controlled substance, the circuit court erroneously excluded Richey’s medical records from evidence at trial, though the error was harmless. More interesting, perhaps, is the issue arising out of the trial court’s post-verdict meeting with the jury. While it wasn’t plain error for the trial judge to meet with the jury after receiving its verdict, what happened in this case causes the court of appeals to suggest trial judges tread carefully when doing so.

State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.

The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.

County of Taylor v. Dean T. Woyak, 2104AP1463, 2/24/15, District 3 (one-judge opinion, ineligible for publication); click here for briefs

Woyak was convicted of OWI and PAC. He had driven into a ditch and was discovered with beer cans littering his car. He claimed that he drank the alcohol that resulted in a .222 BAC after the accident not before or during driving. Thus, the trial court should not have instructed the jury that it could find him intoxicated based on the results of an alcohol-concentration test performed within 3 hours of driving.

State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket

Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.

State v. Kyle R. Christoffersen, 2014AP1282, District 2, 1/28/15 (1-judge decision; ineligible for publication); case activity

The judge at Christoffersen’s refusal hearing didn’t violate Christoffersen’s due process rights when it limited cross-examination about the arresting officer’s training on, and administration of, field sobriety tests and refused to allow Christoffersen to make an offer of proof by questioning the officer. (¶¶5-7, 14).

State v. Jose O. Gonzalez-Villarreal, 2013AP1615-CR, District 1, 1/27/15 (not recommended for publication); case activity

The court of appeals rejects Gonzalez-Villarreal’s challenge to his conviction for possessing child pornography based on claims that: his right to a speedy trial was violated; discovery restrictions violated his right to equal protection; other acts evidence was erroneously admitted; the trial court rejected his modified jury instruction on possession; the court erroneously exercised its sentencing discretion.

County of Calumet v. Lisa L. Dolajeck, 2014AP2100, District 2, 1/21/15 (one-judge opinion; ineligible for publication); case activity

The court of appeals here affirms a decision denying a motion to dismiss OWI charges and a motion to suppress evidence obtained during a traffic stop. It holds that the sheriff in this case had reasonable suspicion to make the stop, and nothing requires law enforcement officers to record a stop even if they have  video cameras in their squad cars.

State v. Terrance L. Ware, 2014AP378-CR, District 1, 12/30/14 (not recommended for publication); case activity

The totality of the circumstances surrounding the investigative stop of Ware’s car gave the police reasonable suspicion that Ware or his passenger was dangerous and might have access to a weapon hidden in the car, justifying a protective search of the car for weapons. In addition, a police officer wasn’t vouching for another state’s witness by saying the witness “told the truth” after additional questioning.

Warger v. Shauers, USSC No. 13-517, 2014 WL 6885952 (December 9, 2014), affirming Warger v. Shauers, 721 F.3d 606 (8th Cir. 2013); Scotusblog page (includes links to briefs and commentary)

Resolving an issue that had split some federal circuit courts, the Supreme Court unanimously holds that Federal Rule of Evidence 606(b) precludes a party seeking a new trial from using one juror’s affidavit or testimony about what another juror said in deliberations to demonstrate the other juror was dishonest during voir dire.

Practitioners take note. This opinion holds the seeds of controversy.  SCOW’s ruling–that forcing a defendant to bare his teeth to the jury does not violate the 5th Amendment–is not so surprising.  But Chief Justice Abrahamson’s concurrence, which announces the elimination of “opinion conferences” and new restrictions on the preparation of concurring and dissenting opinions seems alarming.