On Point blog, page 51 of 69
§ 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.
Privilege – Patient-Counselor, § 905.04(4) (2001-02) – Extinguished by Mandatory Reporting Obligations
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.
Privilege – Comment on Silence, Permissible Impeachment, § 905.13
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.
“Maday” Examination of Complainant Where State’s Expert Never Conducted Exam
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.
Controlled Substance – Sufficiency of Evidence, Proof of Substance — Presumptive and Confirmatory Testing
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,
Expert Opinion – TPR Parent’s Ability to Meet Condition for Child’s Return
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,
Evidence – Hearsay – Co-Conspirator’s Statement, § 908.01(4)(b)5.
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,