On Point: 15. Evidence

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court of appeals decision (3-judge, not recommended for publication); BiC; Resp.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,

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

Statement against Interest, Exculpating Defendant
Against-interest statement exculpating defendant admissible. Declarant unavailable, given reasonable but unsuccessful efforts to subpoena. Contrary to trial court, statement not ambiguous but was direct admission of crime and corroborated by having been made to different people on different occasions.

court of appeals decision, for Patterson: David R. Karpe

Multiplicity – First-Degree Reckless Homicide by Delivery of Controlled Substance, § 940.02(2)(a) and Contributing to Delinquency Resulting in Death of Child, § 948.40(4)(a): Not Multiplicitous
Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a),

State v. Tony Payano, 2009 WI 86, reversing 2008 WI App 74
For Payano: Patrick Cavanaugh Brennan

Issue: Payano was convicted of shooting at police officers who entered his apartment under a no-knock warrant; he claimed self-defense (i.e., defending himself against unknown armed intruders); over objection, the State presented an informant’s testimony that the day before he had been at Payano’s apartment and seen Payano with drugs and a handgun: the issue is whether this testimony was properly admitted to provide “context” for the event.

State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09
For Lammers: Amelia L. Bizzaro

Issue/Holding:

¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat.