On Point: 15. Evidence

State v. Michael James Carter, 2010 WI 40

Wisconsin supreme court decision, reversing unpublished summary order; for Carter: John T. Wasielewski; BiC (State); Resp.; Reply

Counsel made a reasonable tactical decision not to search for admissibility of sexual conduct evidence as an exception to the rape shield law. Therefore, Carter can’t show deficient performance. Separately, this evidence wouldn’t have fallen within an exception anyway,

decision below: unpublished (2009AP118); for Burns: David R. Karpe

Issue:

Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?

7th circuit court of appeals decision

Habeas Review – Exculpatory Evidence
Statements of three eyewitnesses, not disclosed to the defendant, that would have implicated the state’s principal eyewitness and otherwise impeached his credibility and that of 2 other state’s witnesses was “material.” It is reasonably probable that disclosure would have netted a different result, and the state court’s contrary conclusion unreasonably applied clearly established law.

The court stresses,

court of appeals decision (3-judge; not recommended for publication); for Jackson: Byron C. Lichstein; BiC; Resp.; Reply

Hearsay, Child Sexual Assault, Residual Exception
Statements by youthful sex assault complainants admissible under residual hearsay exception, court rejecting idea that it’s thereby allowing exception to swallow general rule against hearsay admissibility; confrontation objection forfeited).

Counsel – Strategic Basis for Failing to Adduce Alibi Witness
Counsel’s failure to have potential alibi witnesses testify was reasonable strategy,

State v. Kyle Lee Huggett, 2010 WI App 69; for Huggett: Craig A. Mastantuono; BiC; Resp; Reply

The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14.

Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is that the respondent on appeal may raise any argument,

court of appeals decision (3-judge, not recommended for publication); BiC; Resp. Br.; Reply Br.
Reversed, 2011 WI 12

Evidence – Extraneous Misconduct – “Context”
On trial for sexual assault of defendant’s young stepdaughter, evidence that defendant also burned her hand was not admissible to show the “context” of the alleged crime.

¶15      Here,

court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.

Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:

Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,

court of appeals decision; for Carter: Melinda A. Swartz, SPD, Milwaukee Appellate; Resp. Br.; Reply Br.

Ex Parte Judicial Questioning, Pretrial Proceeding
Pretrial judicial questioning of a witness at return of a bench warrant worked deprivation of the defendant’s rights to counsel and presence at trial when the witness was subsequently impeached with statements she made during that exchange, ¶¶17-21. The error, though occurring but once and limited to impeachment,

supreme court decision; court of appeals decision; for Fischer: James M. Shellow, Robin Shellow, Urszula Tempska

Note: federal habeas relief was subequently granted, Richard M. Fischer v. Ozaukee Co. Circ. Ct., ED Wis No. 10-C-553, 9/29/10.  Federal appellate and district court cases don’t bind Wisconsin courts, which therefore needn’t follow this habeas decision, e.g., State v. Mechtel, 176 Wis. 

court of appeals decision, affirmed, 2011 WI 27; for Beauchamp: Martin E. Kohler, Craig S. Powell; case activity

Dying Declaration, § 908.045(3)

¶8        …  dying declaration, codified in Wisconsin Stat. Rule 908.045(3): “A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.” Under established law,