On Point blog, page 50 of 68
§ 904.01, Relevance – Consciousness of Innocence – Offer to Take Polygraph
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding:
¶39 Finally, we determine that the circuit court did not erroneously exercise its discretion in refusing to admit testimony regarding Shomberg’s offer to take a polygraph examination. … However, such an offer is only “relevant to the state of mind of a person making the offer as ‘long as the person making the offer believes that the test or analysis is possible,
Hearsay – Residual Exception, § 908.045(6)
State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶59 We agree with the State that while Krnak’s statement to Ellifson does not technically qualify as an excited utterance, or statement of recent perception due to timing problems, it does qualify under the residual hearsay exception because it contains several guarantees of trustworthiness similar to those found in statements admitted under the excited utterance exception….
Hearsay – Statement of Recent Perception, § 908.045(2)
State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding1 [general principles]:
¶29 … As this court summarized in Weed, for a statement to fit recent perception exception, it must pass the following three criteria:
(1) the statement was not made in response to the instigation of a person engaged in investigating,
§ 901.07, Completeness Doctrine — Triggered by Accusation Witness Engaged in “Systematic” Lying
State v. Tyrone Booker, 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue/Holding: Defense cross-examination focusing on inconsistencies in statements of the alleged victim permitted the State to read her entire first statement to the jury under the completeness doctrine; State v. Eugenio, 210 Wis. 2d 347, 565 N.W.2d 798 (Ct. App. 1997), followed:
¶25 Here, as in Eugenio,
§ 902.01(2), Judicial Notice — Generally
State v. Leonard A. Sarnowski, 2005 WI App 48
For Sarnowski: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶13. Trial courts may take judicial notice in limited areas-“fact[s] generally known within the territorial jurisdiction of the trial court,” or “fact[s] capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Wis. Stat. Rule 902.01(2). Significantly, a court may not take judicial notice unless the parties have at some point “an opportunity to be heard.”
§ 904.01, Relevance – Generally – FSTs
State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke
Issue/Holding:
¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) (“All relevant evidence is admissible unless otherwise provided by law.”).
§ 904.01, Relevance – Field Sobriety Test
State v. Richard B. Wilkens, 2005 WI App 36
For Wilkens: Waring R. Fincke
Issue/Holding: Field sobriety tests (alphabet and finger-to-nose tests; and heel-to-toe walk) “are observational tools, not litmus tests that scientifically correlate certain types or numbers of ‘clues’ to various blood alcohol concentrations,” ¶17. Thus, the officer’s observations of Wilkens’ performance isn’t treated “any differently from his other subjective observations of Wilkens, i.e., his red and glassy eyes,
§ 904.01, Relevance – Gun Possession, on Charges of Drug Trafficking While Armed
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding: On charges of drug trafficking while armed, possession of guns (along with flash suppressor and bulletproof vest) was admissible as relevant for purposes other than “bad character,” ¶¶35-39. (State v. Spraggin, 77 Wis. 2d 89, 252 N.W.2d 94 (1977) and State v. Wedgeworth, 100 Wis.
Particular Examples of Misconduct, § 904.04(2) – Intent — Child Abuse
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding: Other acts evidence that on two prior occasions the defendant, while disciplining her child, had struck the child with sufficient force to cause injury and require government intervention, was relevant and admissible under § 904.04 to prove the intent element of the charged offense of abuse of a child, § 948.03(2)(b), and also to disprove the defense of reasonable discipline.
§ 904.10, Defendant’s Unsolicited Statement to Court Asking for Care by “Mental Doctors”
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether defendant’s letter to the trial court, stating that he did not want the case to go to trial; that he wished to be placed in a facility in the care of “mental doctors”; and that the court sentence him for a Class B felony, was admissible.
Holding:
¶20 We agree with Norwood that Wis.