On Point blog, page 31 of 68
Is cell tower tracking “junk science”?
Now that Wisconsin follows Daubert, perhaps you can challenge the cell tower tracking evidence the State plans to present in your case as “junk science.” Click here for an ABA Journal story about how to do it. According to defense expert Michael Cherry: “No one who understands the relevant science would ever claim that data from a single cell tower can reliably be used to specify the location of a caller at the time a particular call is made.” Click here for the decision and order denying the admission of cell tower tracking evidence in U.S.
Ineffective assistance of counsel claim rejected; multiple alleged errors either not prejudicial or not deficient
State v. Ronell Howlett, 2012AP1672-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity
Howlett, a school bus driver, was convicted of three counts of sexual assault of C.A., a nine-year-old child he was responsible for driving. (¶¶1-3, 7). Adopting significant portions of the trial court’s postconviction ruling, the court of appeals rejects his claim that trial counsel was ineffective in the following ways:
- Failing to introduce C.A.’s attendance records: C.A.
Plea withdrawal — newly discovered evidence
State v. Edward Devon Smart, 2012AP1178-CR, District 1, 5/7/13; court of appeals decision (not recommended for publication); case activity
Smart is not entitled to plea withdrawal based on co-actor’s testimony that he coerced Smart to commit the crime because the coercion evidence could have been presented using other witnesses known to defendant before he entered his plea:
¶7 Smart argues that Rushing’s testimony is new because he did not know Rushing would testify that he forced Smart to rob the victims.
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,