On Point: 15. Evidence

State v. Mark E. Johnson, 2011AP2673-CR, District 3, 9/25/12

court of appeals decision (1-judge, ineligible for publication); case activity

Cross-examination of Johnson, on trial for possession of marijuana and bail jumping, as to his marijuana use was proper, but as to his use of cocaine (eliciting an admission) was reversible error:

¶10      Johnson concedes that, after he testified he never possessed marijuana, the State was permitted to cross-examine him about a previous instance where he possessed marijuana.  

State v. Thomas R. McEssey, 2011AP2668-CR, District 4, 9/20/12

court of appeals decision (not recommended for publication); case activity

The police inadvertently destroyed a recording of a phone conversation between McEssey and the alleged victim. (A separate, but partial recording – containing only the latter’s side of the conversation – was made, misplaced, and belatedly disclosed to the defense.) Finding that the destruction of the recording of the full conversation was unintentional,

State v. Michael Anthony Lock, 2012 WI App 99 (recommended for publication); case activity

Other-Acts Evidence 

Lock was tried and convicted for homicide, kidnapping and possession with intent to deliver. The State elicited testimony from numerous witnesses to the effect that Lock headed a vast criminal enterprise, of which these crimes were a part in that the two homicide victims were drug dealers, whom Lock killed (or ordered killed) over drug money.

State v. Jason M. Jacobs, 2012 WI App 104 (recommended for publication); case activity

Search & Seizure – Consent – Blood Draw

Following a fatal traffic accident, Jacobs performed field sobriety tests well enough that he wasn’t placed under arrest, but he was asked to submit to a blood draw. Jacobs called his attorney, who advised him not to consent to the draw, but Jacobs nonetheless agreed to go to the hospital with an officer to have a blood test.

State v. Terry G. Vollbrecht, 2012 WI App 90 (recommended for publication); case activity

§ 974.06 Motion – Laches Inapplicable 

¶17 n. 14:

While we acknowledge the State’s argument that Vollbrecht’s Wis. Stat. § 974.06 motion is barred by laches and its request that we certify the issue to the supreme court, we decline the State’s invitation.  The State concedes that the supreme court has previously held that laches does not apply under § 974.06. 

State v. Kami L. Jennings, 2011AP2206-CR, District 2, 6/27/12

court of appeals decision (1-judge, ineligible for publication); case activity

Evidence, introduced by the State, as to the defendant’s belief in reincarnation was inadmissible:

¶15      While the parties did not brief the issue, we hold that Jennings’ testimony should have been excluded as inadmissible character evidence under Wis. Stat. § 904.04(1).  See State v.

State v. James E. Emerson, 2011AP1028-CR, District 3, 6/26/12

court of appeals decision (not recommended for publication); case activity

Counsel – Substitute 

Given findings made by the lower court after an evidentiary hearing, the court of appeals upholds denial of counsel’s motion to withdraw: counsel was prepared for trial; “(t)his was a dilatory tactic by the defendant,” on the eve of trial after the charge had been pending for some time;

State v. Eric Dominique Lesueur, 2011AP1550-CR, District 3, 6/26/12

court of appeals decision (not recommended for publication); case activity

By not asserting a discovery violation, for the State’s failure to provide a CD of a witness interview, trial counsel waived any potential issue, and review is limited to counsel’s effectiveness, ¶5. Lesueur can’t meet his burden of IAC-prejudice:

¶8        Lesueur did not establish Strickland prejudice.  

on review of published decision; for Novy: Bridget E. Boyle; case activity

Rebuttal – Evidence Excluded from Case-in-Chief for Discovery Violation / Sleeping Juror 

Issues (Composed by On Point) caution: issue-identification necessarily speculative; check case activity link after briefs filed for verification of issues: 

1. a) Whether evidence ruled inadmissible during the State’s case-in-chief as a sanction for violating discovery rules is thereby rendered inadmissible at all stages,

State v. Andre L. Miller, 2012 WI App 68 (recommended for publication); for Miller: Jeffrey J. Guerard; case activity

Haseltine “Vouching” Rule 

The anti-vouching rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (one witness may not comment on the credibility of another witness) isn’t applicable to a pre-trial interrogation during which the detective describes the defendant as lying.