On Point blog, page 40 of 68
Evidence – Moving Radar
Village of Marathon City v. Jenny L. Nowak, 2010AP462, District 3, 9/30/10
court of appeals decision (1-judge, not for publication); Resp. Br.
¶11 The five-factor Hanson/Kramer test is used to determine the accuracy of moving radar.[4] See Washington Cnty. v. Luedtke, 135 Wis. 2d 131, 133 n.2, 399 N.W.2d 906 (1987). “If there is compliance with the Hanson/Kramer criteria,
State v. Marvin L. Beauchamp, 09AP806, Wis SCT rev granted 9/13/10
decision below: 2010 WI App 42; for Beauchamp: Martin E. Kohler, Craig S. Powell
Issues (from Table of Pending Cases):
Does the confrontation clause bar admission of testimonial dying declarations against a defendant in light of Crawford v. Washington, 541 U.S. 36 and State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811?
Does a defendant’s right to due process of law restrict the substantive use of prior inconsistent statements?
Expert Witness Qualifications; Admissibility – Field Sobriety Tests; WI (Drugs) – Sufficiency of Evidence
City of Mequon v. James E. Haynor, 2010AP466-FT, District 2, 9/8/10
court of appeals decision (1-judge, not for publication); for Haynor: Peter L. Ramirez; BiC; Resp.; Reply
Expert Witness Qualifications – Lab Chemist: Physiological Effects of Drugs
The trial court didn’t erroneously exercise discretion in qualifying as an expert, the supervisor of forensic toxicology at the Wisconsin State Laboratory of Hygiene on the matter of how certain drugs interact and impair judgment,
Interrogation – Ambiguous Request for Counsel; Joinder/Severance; Evidence – Autopsy Photos
State v. Adamm D.J. Linton, 2010 WI App 129; for Linton: Joseph E. Redding; BiC; Resp.; Reply
Interrogation – Ambiguous Request for Counsel
Initial custodial questioning terminated when Linton invoked his right to silence. During subsequent re-interrogation, Linton said, “when I asked for a lawyer earlier, why wasn’t he appointed to me?” The detective indicated that if Linton was asking for a lawyer then the police would “just stop talking to”
In Camera Inspection, Shiffra/Green Material
State v. Donovan L. Lewis, 2009AP2531-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Lewis: Shelley Fite, SPD, Madison Appellate; BiC; Resp.; Reply
Defense access to a complainant’s privileged counseling records requires first convincing the trial court to conduct an in camera inspection to see if the records contain information material to innocence. And that requires showing a reasonable likelihood the records contain non-cumulative material information.
Recorded Confessions; Sentence Credit – Predisposition Secure Detention
State v. Dionicia M., 2010 WI App 134; for Dionicia M.: Andrew Hinkel, SPD Madison Appellate
Recorded Confessions
The juvenile was in custody when she was directed to the locked back seat of a patrol car so that she could be transported back to school after being reported truant; and, because it was feasible under the circumstances to record her ensuing statement, failure to do so rendered it inadmissible.
Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence
State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.
Evidence – Daubert – Bullet Traced to Particular Gun
The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:
¶22 Unlike in the federal system,
Evidence – Recording – Best Evidence Rule
State v. John D. Harris, 2009AP3140-CR, District 1, 8/17/10
court of appeals decision (1-judge, not for publication); for Harris: Byron C. Lichstein; BiC; Resp.; Reply
Testimony of an investigator relating the contents of a recording wasn’t inadmissible under the best evidence rule, § 910.02.
¶11 Although the best evidence rule generally requires an original recording to be played in court in order to prove the content of the recording,
Plain Error
State v. Erik B. Hudson, 2010AP000780-CR, District 3, 8/10/10
court of appeals decision (1-judge, not for publication); for Hudson: George S.Pappas, Jr.; BiC; Resp.
While “better practice” would have been to strike and give a curative instruction following a witness’s non-responsive testimony, the trial court’s failure to do so wasn’t plain error.
State v. Chad W. Voeller, No. 2009AP001596-CR, District II, 7/28/10
court of appeals decision (3-judge, not recommended for publication); for Voeller: Steven G. Richards; BiC; Resp.; Reply
Counsel – Sanction – Appendix
Contrary to the State’s certification, the appendix does not include the trial court’s findings or opinion. The transcript of the oral findings and opinion should have been included in the appendix.