On Point: 15. Evidence

State v. Denis L.R., 2005 WI 110, affirming as modified 2004 WI App 51
For Intervenor Dawn R.: Dwight D. Darrow

Issue/Holding: Revelation of a child’s statement to a counselor, discussing whether or not she had been sexually abused, may not be resisted on ground of privilege:

¶7        We do not address these issues regarding waiver because we conclude that there is no privilege here.

State v. Maurice S. Ewing, 2005 WI App 206
For Ewing: David R. Karpe

Issue/Holding: Where the defendant waived his rights and gave pre-trial statements to the police and presented an alibi defense at trial, prosecutorial evidence that the defendant had not revealed the alibi during those statements, and exploitation of that omission during closing argument, did not amount to impermissible comment on silence. “Rather, the prosecutor was highlighting the inconsistency between what Ewing did say and what his alibi witnesses testified to at trial.” ¶¶10-13.

State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs

Issue/Holding: Where the State’s expert witness never interviewed the victim (nor viewed a videotape of the victim’s statement), the defendant wasn’t entitled to a psychological examination of the victim pursuant to State v. Maday, 179 Wis. 2d 346, 359-60, 507 N.W.2d 365 (Ct. App. 1993), ¶27.

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue/Holding: Proof of the controlled substance is sufficient where a “presumptive” test is followed by a “confirmatory” one (State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997), followed), with the PDR being used to establish the presumption:

¶42      Here,

Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion
For Shannon R.: Brian C. Findley, SPD, Madison Appellate

Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.

Holding:

¶40      In deciding the issue of foundation,

State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis

Issue/Holding: ¶32, n. 4:

A statement made by a coconspirator in furtherance of the conspiracy is not a hearsay “exception”; it expressly is not hearsay. Wis. Stat. § 908.01(4)(b)5. (2003-04). While hearsay “exemption” is a more appropriate term, statements made under this subsection commonly are analyzed as hearsay and termed hearsay “exceptions.” See,

State v. Jermaine Smith, 2005 WI App 152, PFR filed
For Smith: Glen B. Kulkoski

Issue: Whether a co-actor’s in-custody pretrial statements were admissible as impeachment on rebuttal after the defense introduced a different hearsay statement by that declarant.

Holding:

¶10      The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis. Stat. § 908.06 ….

¶11      A defendant who introduces testimony from an unavailable declarant cannot later claim that he was harmed by his inability to cross-examine that declarant when prior inconsistent statements are introduced to impeach an out-of-court statement introduced by the defendant.

State v. Kevin D. James, 2005 WI App 188
For James: Terry W. Rose

Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request. In effect, the videotape stands as the direct examination,

State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Testimony of a court employee that she had examined a certified copy of a foreign court order and that the exhibit to be admitted into evidence was a copy of that order sufficiently authenticated the exhibit, ¶¶29-32.

State v. Tyrone Booker, 2005 WI App 182
For Booker: Jeffrey W. Jensen

Issue: Whether the trial court erroneously exercised discretion under the rape-shield law, and denied effective cross-examination, by excluding evidence of semen swabs of the alleged sexual assault victim not linked to Booker, where the allegations against him involved touching not intercourse.

Holding:

¶16      … The statute lists three types of evidence that are exceptions to the rape shield law: (1) evidence of the complainant’s past conduct with the defendant;