On Point: 15. Evidence

State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger

Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:

¶10       Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);

State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff

Issue/Holding:

¶29 Here, Detective Carter testified that he observed the building at 450 North 33rd Street, saw people coming, staying for a few minutes and leaving, and explained that such traffic was consistent with operating a drug house. He admitted, however, that he was unable to see which unit the people who appeared to be purchasing drugs entered.

State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen

Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and,

State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup

Issue/Holding1: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:

¶23      Under the totality of the circumstances, we conclude that Davis’s statement was not so closely associated with the voice stress analysis test so as to render it one event;

State v. William Troy Ford, 2007 WI 138, affirming unpublished decisionFor Ford: Ralph J. Sczygelski

Issue/Holding Belated discovery of the bailiff’s involvement in the charged offense as a possible witness did not, under the circumstances, cause sufficient prejudice to require mistrial:

¶57      In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk,

State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis

Issue/Holding: Testimony by a “gang expert” as to the gang-affiliation of certain witnesses, in an effort to explain their motive to testify as they did, was irrelevant in the absence of any evidence that the defendant was himself a gang member:

¶14   Burton’s central argument on appeal is that Warmington’s testimony was squarely barred by State v.

State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg

Issue: Whether a trial-level objection that a dismissed witness was unavailable for cross-examination on a prior statement was specific enough to preserve an appellate argument that the witness wasn’t given an opportunity to explain or deny the statement.

Holding:

¶31 The State argues that Nelis did not object at trial to the admission of the statements on the ground of Wis.

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding:

¶14      Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio,

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding:

¶16      Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest.

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding:

¶31      … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences,