On Point blog, page 48 of 68
§ 904.04(2), “Reverse Misconduct” – Felony Conviction of 3rd-Party, as Relevant to Felon-in-Possession
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters
Issue/Holding: On a prosecution for felon in possession of a firearm, based on the allegation that the defendant “handled” a gun in a gun store, evidence of a 3rd-party’s prior felony conviction was admissible, where: the identity of the person who touched the gun was disputed; and, the 3rd-party acknowledged in an extrajudicial statement,
§ 902.01(2), Judicial Notice – Local Police P & P Manual
State v. Vanessa Brockdorf, 2006 WI 76, affirming unpublished decision
For Brockdorf: Martin E. Kohler, Brian Kinstler
Issue/Holding: ¶39 n. 6:
After oral argument and pursuant to an order dated October 14, 2005, the parties submitted to the court the relevant provisions of the MPD Policies and Procedures Manual. Pursuant to Wis. Stat. § 902.01, in our discretion,
§ 904.03, Unfair Prejudice – Witness’s Reference to Knowing Defendant from Jail as Basis for Ability to Identify Him
State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding
Issue/Holding: Failure to object to a witness’s reference to having known the defendant from jail was not deficient performance, because this evidence was admissible anyway:
¶47 Furthermore, Cooks’ ineffective assistance of counsel claim is premised on a correct trial court ruling and cannot succeed. See Ziebart,
Unfair Prejudice, § 904.03 – Misconduct Evidence, Child Sexual Assault
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶23 Here, the offered evidence (testimony of forced fellatio, performed by a five-year-old child victim, followed by urination in the victim’s mouth) undoubtedly aroused the jury’s “sense of horror” and “provoke[d] its instinct to punish.” See Sullivan, 216 Wis. 2d at 789-90. Revulsion as to this conduct is not significantly mitigated by the fact that McGowan was only ten years old at the time and the event was an isolated incident.
Particular Examples of Misconduct, § 904.04(2) – Bias of Prosecution Witness
State v. Walter T. Missouri, 2006 WI App 74
For Missouri: Jeffrey W. Jensen
Issue: Whether evidence of police officer Mucha’s mistreatment of a 3rd-party (Scull) in an otherwise unrelated but similar instance was admissible to further defendant Missouri’s claim that Mucha was untruthful in denying physical abuse against and planting evidence on Missouri.
Holding: This evidence satisfied the three-part test of State v.
Particular Examples of Misconduct, § 904.04(2) – “Reverse” Misconduct – Misidentification of Defendant on Similar Crime
State v. Bruce T. Davis, 2006 WI App 23
For Davis: Russell Bohach
Issue/Holding: Evidence that Davis was misidentified as the perpetrator of a crime he could not have committed but which was similar to the crimes he was tried for was admissible:
¶28 Looking at the first factor, the State concedes that this witness’s testimony was offered for identification purposes, an admissible purpose under Wis.
§ 904.04 – Greater Latitude Rule in Sexual Assaults, Generally
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶14 … The supreme court has provided significant guidance concerning the use of other acts evidence in child sexual assault cases. In State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, the court discussed the three-step framework, which was originally set forth in State v.
§ 904.04 – Greater Latitude Rule in Sexual Assaults — Admissibility of Assault by One Child on Another Child 8 Years Before Charged Offense
State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson
Issue/Holding:
¶20 We cannot conclude that the allegations are sufficiently factually similar to justify admission of Janis’s testimony as other acts evidence. Assuming the truthfulness of both Sasha and Janis for purposes of this analysis, we conclude that a single assault, by one young child on another young child, eight years before repeated assaults by an adult on a different child who was three years older than the first victim,
Examination of Witness – Open-Ended Question
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶39 Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis.
Cross-Examination – Prosecutorial Accusation of Defendant “Lying”
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶35 … Rule 906.08(2) permits the cross-examination of a witness about “extrinsic” matters, “if probative of truthfulness or untruthfulness.” Certainly, lying on direct-examination, and repeating the lie on cross-examination, is “probative of truthfulness.” Moreover, Rodriguez opened the door, and the prosecutor was fully justified in calling him on it.