On Point blog, page 41 of 68
Evidence / IAC: Comment on Refusal to Provide DNA; Instruction: Recording Policy Interrogation; Impeachment: Prior Convictions
State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply
Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance
Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel,
State v. Daniel Perry Oswald, No. 2009AP2455-CR, District I, 7/20/10
court of appeals decision (3-judge, not recommended for publication); for Oswald: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply
Evidence – Consciousness of Guilt
Testimony from the Oswald’s parole agent, that Oswald missed an appointment shortly after the incident in question and that he seemed nervous when they later met, was relevant as “consciousness of guilt.” Admissibility wasn’t substantially outweighed by danger of unfair prejudice,
Reverse Waiver, §§ 938.183(1), 970.032(1) & (2); Comment on Truthfulness; Self-Incrimination – Waiver – Examination by Expert
State v. Corey Kleser, 2010 WI 88, affirming in part, reversing in part, 2009 WI App 43; for Kleser: Devon M. Lee, SPD, Madison Appellate; BiC; Resp.; Reply
Reverse Waiver, §§ 938.183(1), 970.032(1) & (2) – Generally
¶69 Nothing in § 970.032(2) places a limitation on the evidence at a reverse waiver hearing so long as the evidence is admissible under the rules of evidence and is relevant to one or more of the three elements set out in the subsection.
State v. Miguel Marinez, No. 2009AP567-CR, Wis SCt rev grant 6/29/10
decision below (unpublished); for Marinez: Ralph Sczygelski
Issues (as provided by the court):
Did the circuit court erroneously exercise its discretion by admitting other acts evidence of the minor child’s videotaped statement without excerption of the hand-burning references?
Did the court of appeals err by applying the de novo standard of review to the circuit court’s decision admitting the minor child’s videotaped statement without excerption of the hand-burning references?
Jury Instructions: Exposing Child to Harmful Materials – Accident Defense – Waiver; Evidence: Richard A.P. – Corroboration Rule; Evidence: Character – Polygraph Offer; Voluntary Statement
State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply
Jury Instructions – Exposing Child to Harmful Materials
The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.
¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law.
Evidence – Extraneous Misconduct; Effective Assistance
State v. Raymond A. Habersat, No. 2009AP976-CR, District I, 7/7/10
court of appeals decision (3-judge; not recommended for publication); for Habersat: Angela Conrad Kachelski; BiC; Resp.; Reply
Evidence – Extraneous Misconduct
On Habersat’s trial for first-degree sexual assault of a child, admission of evidence of his 1991 sexual assault of a child to establish motive and intent was a proper exercise of discretion,
Rape-Shield – Prior Untruthful Allegation
State v. Jim H. Ringer, 2010 WI 69, reversing unpublished opinion; for Ringer: Thomas O. Mulligan; BiC; Resp.; Reply
¶3 We conclude that the circuit court erroneously exercised its discretion when it granted Ringer’s motion in limine, allowing him to introduce at trial evidence that the child complainant made prior allegedly untruthful allegations of sexual assault against her biological father.
1st-Degree Intentional Homicide – Sufficient Evidence, Intent; Sanction – Appendix
State v. Patrick M. Zurkowski, No. 2009AP929-CR, District III, 6/22/10
court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.
1st-Degree Intentional Homicide – Sufficient Evidence, Intent
¶13 That Zurkowski killed June through a combination of repeated blows and cutting her tongue with a ceramic object he crammed in her mouth, rather than by killing her via a single fatal wound,
Milw. Dep’y. Sh. Assoc. and Kuhtz v. City of Wauwatosa, No. 2009AP1924, District I, 6/15/10
court of appeals decision; BiC; Resp.; Reply
Confidentiality – § 51.30(4) – Emergency Detention Statement
Release by a police department of a statement of emergency detention, occasioned by a deputy sheriff’s threat to kill superior officers, violated the § 51.30(4) prohibition on release of “treatment records”; and was not justified by the public policy exception that imposes on psychiatrists the duty to warn potential targets of threats made by patients.
State v. Brian A. Oetzman, 2009AP2514-CR, District II, 6/9/10
court of appeals decision (1-judge; not for publication); for Oetzman: Kirk B. Obear; BiC; Resp.; Reply
Traffic Stop – U-Turn
¶8 As such, three rules of the road come into play.Under Wis. Stat. § 346.34(1), no person may turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Wis.