On Point: 15. Evidence

State v. Tomas J. Hoyle, 2020AP1876-CR, petition for review of an unpublished opinion granted 9/14/22; case activity (including briefs)

Issue: (adapted from the State’s PFR):

The 5th Amendment prohibits a prosecutor from commenting  on defendant’s failure to to the stand. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). In a case where the defendant exercises his right not to testify, does the prosecution violate this prohibition by telling the jury that the victim’s account is “uncontroverted” and no evidence was offered to dispute it?

State v. T.M., 2021AP1729, 8/16/22, District 1 (1-judge opinion, ineligible for publication); case activity

“Taylor” presented three challenges to the termination of her parental rights to her son: (1) erroneous admission of a psychological examination; (2) ineffective assistance of trial counsel for failure to object to a flawed jury instruction; and (3) insufficient evidence. The court of appeals rejected all of them.

State v. Travis D. Huss, 2021AP1858, 7/20/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Huss was stopped at 1 a.m. for going through a flashing red light without stopping. The officer suspected he was impaired and eventually arrested him for OWI. Huss asked the officer to give him a preliminary breath test before she arrested him, but the circuit court excluded evidence of his request from being admitted at trial. The court’s ruling was not an erroneous exercise of discretion.

Chippewa County Dep’t of Health and Human Servs. v. J.W.., 2021AP1986, 7/19/22, District  3, (1-judge opinion, ineligible for publication); case activity

“Janine” raised an insufficient evidence claim and several ineffective assistance of counsel claims in her appeal from an order terminating her parental right to her son.  This post focuses on two of the IAC claims. Counsel failed to object to (1) portions of the county social worker’s testimony, and (2) new information that the GAL introduced during closing statements.

State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)

Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.

State v. Ryan Hugh Mulhern, 2022 WI 42, 6/21/22, reversing a per curiam court of appeals decision, 2019AP1565, case activity (including briefs)

When we posted on SCOW’s grant of review of the non-citable court of appeals decision in this case, we imagined the court might accept the state’s invitation to change the scope of the rape shield law and hold the evidence at issue here–testimony proffered by the state that a complaining witness had not engaged in sexual intercourse–admissible. Instead, the court repeats what it has said in prior cases: that such evidence falls within the rape-shield prohibition. But it says the erroneous introduction of the evidence was harmless in this case, so it reverses the court of appeals’ grant of a new trial.

State v. Joseph M. Marks, 2022 WI App 20; case activity (including briefs)

Given the facts in this case, the court of appeals rejects the defendant’s claim that an audiovisual recording of a child’s statement was inadmissible under § 908.08 because investigators merged a separate audio file of the interview with the video to correct a problem with the original audio.

State v. Tomas Jaymitchell Hoyle, 2020AP1876-CR, 4/26/22, District 3 (not recommended for publication); case activity (including briefs)

Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the prosecutor repeatedly argued that the testimony from “Hannah” (the complaining witness) was “uncontroverted” and told the jury it had “heard no evidence” and that there was “absolutely no evidence” disputing her account of the alleged sexual assault. Under the circumstances of this case, the court of appeals holds that the prosecutor’s arguments violated Hoyle’s Fifth Amendment rights.

State v. Hajji Y. McReynolds, 2022 WI App 25; case activity (including briefs)

This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).

State v. Jeffrey L. Hineman, 2020AP226-CR, petition for review of a per curiam opinion granted 4/13/22; reversed 1/10/23; case activity (including briefs)

Issues (from the State’s petition for review)

1. In cases involving credibility contests between a complaining witness (here, S.S.) and the defendant (Hineman), to what extent can a reviewing court reweigh the witnesses’ credibility in assessing whether, based on omitted evidence, there was a reasonable likelihood of a different result under the Brady materiality or Strickland prejudice standards?

2. The court of appeals also reached an abandoned Shiffra/Green issue and ordered in camera review of S.S.’s therapy files from his private therapist because the therapist acted as a mandatory reporter.