On Point blog, page 31 of 68
Rape Shield Law — prior sexual activity between defendant and complainant; relevance to fact in issue; probative value outweighing prejudice
State v. Muhammad Sarfraz, 2013 WI App 57, petition for review granted 9/17/13; case activity
The circuit court erroneously excluded evidence of prior sexual activity between Sarfraz and I.N., the complainant. She alleged Sarfraz, wearing a mask and saying he was the landlord, knocked on the door of her apartment, came in when she opened the door, and forcibly engaged in sexual intercourse with her.
New trial ordered due to erroneous evidentiary rulings that excluded school disciplinary records relevant to impeaching the complainant and admitted Haseltine-type evidence
State v. Gene A. Echols, 2013 WI App 58; case activity
Echols is entitled to a new trial on charges of child sexual assault because the trial court erred in prohibiting evidence relating to the complainant’s motive to fabricate the assault and in admitting testimony from Echols’s employer that he only stutters when he is lying.
Erroneous ruling excluding complainant’s school disciplinary records
A fifteen-year-old student alleged that Echols,
Privileges — Confidential informant, § 905.10(3)(b) — sufficiency of information to trigger in camera review
State v. Jessica A. Nellessen, 2013 WI App 46, petition for review granted 10/15/13; case activity
Under the two-step procedure for determining whether a confidential informant’s identity should be disclosed, the court must first determine whether there is reason to believe that the informant may be able to give testimony “necessary to a fair determination of the issue of guilt or innocence.” If there is reason to so believe,
Ineffective assistance of counsel — failure to present evidence, ineffective cross examination. Privileges — Confidential informant, § 905.10(3)(b); disclosure of informant
State v. Kendrick L. Lee, 2011AP2126-CR, District 4, 3/28/12; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of counsel — failure to present evidence, ineffective cross examination
In a necessarily fact-intensive discussion that defies quick summary here, the court of appeals concludes Lee’s trial attorney was not ineffective for failing to present two categories of additional evidence or in her cross examination of one of the state’s witnesses.
Ineffective assistance of counsel – failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist; failure to object to evidence of prior felony convictions
State v. Willie M. McDougle, 2013 WI App 43; case activity
Failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist
Trial counsel was not ineffective for failing to object on confrontation clause grounds to either the opinion testimony of the pathologist who did not conduct autopsy or the reports of pathologist who did conduct the autopsy because any failure to object was not prejudicial:
¶17 …[T]rial counsel’s decision not to object to Dr.
State v. Curtis L. Jackson, 2011AP2698-CR, petition for review granted, 2/11/13
Review of unpublished court of appeals decision; case activity
Issues (composed by On Point)
1. Whether the jury instructions on self defense as it pertained to second degree reckless homicide fairly and adequately explained the defense to the jury.
2. Whether trial court erroneously excluded evidence of the victim’s reputation for violence.
Petitions for review aren’t available on the court’s website, so issue-formulation is educated guesswork based on the decision of the court of appeals.
Admission of other-acts evidence—harmless error
State v. Andrew J. Wirth, 2012AP208-CR, District 4, 2/21/13; court of appeals decision (not recommended for publication); case activity
Wirth was charged with the shooting deaths of two people outside a bar. He claimed self defense. The trial court allowed evidence that Wirth engaged in a confrontation earlier in the evening at a different bar with someone other than the shooting victims. In a fact-intensive opinion, the court of appeals concludes that if admission of the evidence was error,
“Plain” error means plain at the time of appeal, not trial
Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5th Cir. 2011)
When is plain really plain? That’s the plain and simple issue in this case. During trial, the district court decided a substantive legal question against the defendant. But while the case was on direct appeal, SCOTUS, in a separate case, settled the legal question in the defendant’s favor, thus prompting a question about whether the district court’s decision in Henderson qualified as “plain error.”
Issue: “Is the time for determining “plainness” the time when the error is committed,
Sentencing – Due Process – In Camera Hearing, Privileged Information
Robert Dietrich v. Smith, 7th Cir No. 12-1672, 12/4/12
seventh circuit decision, on habeas review, affirming 2011C117 (E.D. Wis 2/23/12); prior history: State v. Dietrich, Wis. App. 2008AP1697-CR
After the trial court denied his request for an in camera inspection of the sexual assault victim’s mental health records, State v. Green, 2002 WI 68,
Other-Acts Evidence – State’s Failure to Identify Specifics
State v. Joel Steinhauer, 2012AP189-CR, District 3, 11/27/12
court of appeals decision (not recommended for publication); case activity
When the State fails to articulate the specific other acts testimony it seeks to adduce, the trial court acts within its discretion in ruling the testimony inadmissible without performing the 3-step analysis of State v. Sullivan, 216 Wis. 2d 768, 771–73, 576 N.W.2d 30 (1998).