On Point blog, page 32 of 68
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Review of unpublished court of appeals decision; case activity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State v. Andrew J. Wirth, 2012AP208-CR, District 4, 2/21/13; court of appeals decision (not recommended for publication); case activity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).
TPR – Meaningful Cross-Examination, § 906.11(1)
La Crosse Co. DHS v. Kristle S., 2012AP2005, District 4, 11/21/12
court of appeals decision (1-judge, ineligible for publication); case activity
The parent was given a meaningful opportunity to cross-examine the social worker with respect to conditions for the children’s return, in that the trial court permitted extensive questioning on these issues before instructing counsel to pursue a different line of questioning:
¶17 Our review of the record also demonstrates that Kristle had a meaningful opportunity to impeach Simmons’ credibility.
State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, WSC review granted 11/14/12
on review of unpublished decision; case activity
Issues (composed by On Point)
1. Whether the defendant made the requisite showing for in camera review of the complainant’s privileged therapy records.
2. Whether, given necessity for in camera review, the complainant’s refusal to authority release of the records mandates suppression of her testimony.
The implications for the administration of State v.
Probable Cause – PBT, § 343.303; Blood Test Admissibility; Probable Cause – PBT, § 343.303
Winnebago County v. Anastasia G. Christenson, 2012AP1189, District 2, 10/31/12
court of appeals decision (1-judge, ineligible for publication); case activity
Probable Cause – PBT, § 343.303
¶11 At the time Putzer administered the PBT to Christenson, he was aware that she had driven her car into a ditch, smelled of “intoxicating beverages” around midnight on Saturday night/Sunday morning (a day and time that increases suspicion of alcohol consumption),
Hearsay – Prior Consistent Statement, § 908.01(4)(a)2;
State v. Daniel Buchanan, 2011AP830-CR, District 1, 10/30/12
court of appeals decision (not recommended for publication); case activity
Hearsay – Prior Consistent Statement, § 908.01(4)(a)2
The prior-consistent statement rule allows substantive admissibility of an out-of-court statement if: “(1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant’s testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,”