On Point: 15. Evidence

State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry

Issue/Holding:

¶44. Alternatively, Wright argues that Lomack’s testimony was admissible as other acts evidence of a third-party perpetrator pursuant to Scheidell. Scheidell involved the admissibility of other acts evidence committed by an unknown third party, which was proffered by the accused on the issue of identity.

State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning

Issue/Holding: Prior sexual assaults were admissible at Silva’s trial for 1st-degree sexual assault of his 6-year old niece: Silva’s 13-year old niece; Silva’s girlfriend’s 13-year old daughter; and Silva’s 9-year old daughter. ¶¶27-28.

State v. Richard G.B., 2003 WI App 13, PFR filed 1/13/03
For Richard G.B.: Bridget E. Boyle

Issue: Whether the “third-party exception” to spousal privilege — which overrides the privilege for crimes committed “against” the spouse, § 905.05(3) — is triggered by sexual assault of a non-spouse, on the theory that such an act amounts to adultery, § 944.16(1), hence a crime against the spouse.

Holding:

¶15.

State v. Phonesavanh Vanmanivong, 2003 WI 41, reversing, 2001 WI App 299
For Vanmanivong: John J. Grau

Issue/Holding:

¶33. With the benefit of these above-stated standards, we now move to the second issue: the application of the procedures in this case. The parties here agree, as do we, that it was error for the circuit court to rely upon an unsworn memo in determining whether the identities of the confidential informants should be disclosed.

State v. Phonesavanh Vanmanivong, 2003 WI 41, reversing, 2001 WI App 299
For Vanmanivong: John J. Grau

Issue/Holding: The test for disclosing an informant’s identity under § 905.10(3)(b) is found in the concurrence to State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982):

¶24. We now reaffirm our holding in Dowe that the concurrence in Outlaw states the test to be applied in determining whether an informant’s identity must be disclosed.

Sampson v. Sampson, 2004 WI 57, reversing 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831

Issue: “¶2 The question before this court is whether a lawyer’s voluntary production of documents in response to opposing counsel’s discovery request constitutes a waiver of the attorney-client privilege under Wis. Stat. § (Rule) 905.11 when the lawyer does not recognize that the documents are subject to the attorney-client privilege and the documents are produced without the consent or knowledge of the client.”

Holding:

¶4 We agree with the circuit court.

State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall

Issue/Holding:

¶19. The test for determining if there has been an impermissible comment on a defendant’s right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant’s right to remain silent.

State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove

Issue/Holding:

¶44. The State charged Gundy as an accomplice to Ross’s criminal activity. Gundy was arrested in Maryland, and brought back to Milwaukee where he was held in custody. Ross contends that pursuant to a plea agreement, Gundy was released from custody, and secured leniency in return for his testimony against Ross.

State v. Gary M.B., 2003 WI App 72, affirmed, 2004 WI 33
For Gary M.B.: T. Christopher Kelly

Issue/Holding:

¶24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶9.) The statute reflects the presumption that “a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted.” 

State v. Stanley A. Samuel, 2002 WI 34, reversing 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565; habeas denied, Samuel v. Frank, 525 F. 3d 566 (7th Cir 2008)
For Samuel: Robert A. Henak

Issue/Holding:

¶30. With due process as our touchstone, we conclude that when a defendant seeks to suppress witness statements as the product of coercion,