On Point: 15. Evidence

State v. Muhammad Sarfraz, 2014 WI 78, 7/22/14, reversing a published court of appeals opinion; opinion by Justice Gableman; case activity

The supreme court holds the circuit court incorrectly concluded that evidence of prior sexual activity between Sarfraz and I.N., the complainant in his sexual assault prosecution, was not relevant to a material fact in the case, but correctly concluded that the probative value of the evidence did not outweigh the prejudice to the complainant. Thus, the evidence was properly excluded.

State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity

Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds?  In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury.  This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.

State v. Rafeal Lyfold Myrick, 2014 WI 55, 7/10/14, affirming a published court of appeals decision; majority opinion by Justice Roggensack; case activity

When does negotiation become agreement? In State v. Myrick, the Wisconsin Supreme Court’s resolution of this question was critical in determining whether the State could use incriminating statements that the defendant had made at a co-defendant’s preliminary hearing. The issue arose because the plea negotiations (one theory) or the plea agreement (alternate theory) fell apart, leading to the defendant’s trial on the original homicide charge.  On Point’s Special Guest Michael Tobin, Deputy SPD, offers his take on the issues.

State v. Antonio D. Williams, 2013AP814; 6/3/14; District 1; (not recommended for publication); case activity

This appeal raises a host of issues but the most interesting concern the trial court’s decisions to: (1) prohibit defense counsel from cross-examining the State’s cooperating witnesses, all of whom were testifying in the hopes of receiving reduced sentences for themselves, about the maximum penalties they faced; and (2) allow the State to use a letter police found in an envelope marked “for my lawyer” to impeach Williams’s alibi witness.

Fond du Lac County v. Douglas L. Bethke, 2013AP2297, District 2, 4/30/14 (1-judge; ineligible for publication); case activity

The circuit court did not erroneously exercise its discretion when it excluded evidence of particular crime lab errors that happened years before Bethke’s blood sample was analyzed.

State v. Daniel K. Rogers, 2012AP186-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

The defendant, having been charged with sexual assault and released on bond, allegedly choked his victim to make her to lie on his behalf at trial. The circuit court admitted this as § 904.04(2) “other acts” evidence at the sexual assault trial, and the COA affirmed because the evidence showed consciousness of guilt.

State v. Brian J. Anderson,  2013AP913-CR, District 1, 4/15/14 (not recommended for publication); case activity

Anderson appealed his conviction for 1st-degree intentional homicide arguing that the trial court should have admitted evidence of his victim’s violent character under State v. McMorris and excluded “other acts” evidence under State v. Sullivan and § 904.04(2) and 904.03. The court of appeals rejects both arguments.

State v. Jimmy L. Powell, 2013AP1111-CR, 3/27/14, District 4; (not recommended for publication); case activity

This appeal stems from a 1st-degree reckless injury conviction.  Powell, a drug dealer, ran over and/or cut his client’s throat during a deal. His enthusiastic, 38-page initial brief raises 7 issues for review.  This post examines the court of appeals’ decision on 2 of them.

“Other Acts” Evidence Issue: Whether the circuit court erred in admitting “other acts”

State v. Ross Timothy Litke, 2013AP1606-CR, 3/11/14, District 1 (1-judge opinion, ineligible for publication); case activity

This was a potentially interesting Daubert case.  The police stopped the car Litke was driving because a tail light was out.  The officer noticed Litke’s bloodshot eyes and asked if he had been drinking.  “Yes, a few beers,” Litke replied.  The officer thus conducted 3 field sobriety tests:  the Horizontal Gaze Nystagmus test (which Litke flunked),

Anthony Ray Hinton v. Alabama, USSC 13-6440, 2/24/14 (per curiam), vacating Hinton v. State, __So. 3d__, 2013WL 598122 (2/15/13).

Docket here.

Trial lawyers, listen up.  Check your expert witness funding cap before settling for an “expert” you know is sub par.

In 1985, managers of 3 different restaurants were robbed and shot—each with two .38 caliber bullets.  The first two managers died.