On Point blog, page 60 of 68
Qualifications — Gang Affiliation
State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe
Issue/Holding: Officer’s background, including “gang training” and investigations into numerous gang-related shootings, made him qualified to testify as to gang activities in city. ¶26.
Expert Witness – Comment On Truthfulness of Another Witness
State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶8. After reviewing these cases, we can discern some general rules: (1) an expert witness can offer opinion testimony only if it complies with Wis. Stat. § 907.02; (2) the testimony can include opinions regarding symptomatology common to child sexual assault victims; (3) the testimony can include a description of the symptoms exhibited by the victims;
Hearsay – Authentication of Document
State v. Gary L. Gordon, 2002 WI App 53, affirmed, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether proof-of-service documents, introduced to show defendant’s knowledge of a domestic violence injunction, violated the hearsay rule.
Holding:
¶43. … However, these documents were not made under oath or attested to in any way; thus, they were not affidavits.
Narrative Statement — Distinct Assertions — Admissibility Methodology
State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶18. Shelleen Joyner argues that Trudy Joyner’s statement is against her penal interest, however, because Trudy Joyner admitted that she “knowingly helped a robber escape.” We disagree. “[W]hen ruling upon a narrative’s admissibility … a court must break it down and determine the separate admissibility of each ‘single declaration or remark.’”
Prior Inconsistent Statement — Foundational Requirement, §§ 906.11(1), 906.13(2)(a)2
State v. Zebelum Smith, 2002 WI App 118, PFR filed 5/9/02
For Smith: Erich C. Straub
Issue: Whether, as a foundational requirement for introducing a witness’s prior inconsistent statement, the witness must be given the opportunity to explain or deny the statement.
Holding: Although § 906.13(2)(a)1 suggests that the witness must first be given opportunity to explain or deny, it adds that the prior inconsistent statement is admissible if the witness hasn’t been excused from testifying:
¶13.
Hearsay – Residual Exception — Child Sexual Assault Victim
State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02
Issue/Holding: Child-sexual-assault-victim’s hearsay statement in this revocation case satisfies test for admissibility under residual exception, State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).
Hearsay – Against-Interest Statement Exculpating Defendant, § 908.045(4) — Declarant Unavailable, Due Diligence to Locate
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue: Whether Williams satisfied the unavailability requirement necessary to admit a declarant’s against-interest hearsay statement exculpating the defendant, § 908.045(4).
Holding: Unavailability is determined by § 908.04(1)(e), and requires a “good-faith effort” and due diligence” in attempting to secure the declarant’s presence, ¶62.
Hearsay – Against-Interest Statement Exculpating Defendant, § 908.045(4) — Right to Present
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue:/Holding: The exclusion of hearsay evidence proffered by the defense is tested under the “two-part framework” of State v. St. George, 2002 WI 50, ¶51, or “whether the proffered evidence was ‘essential to’ the defense, and whether without the proffered evidence, the defendant had ‘no reasonable means of defending his case.’”
Against-Penal Interest Statement Exculpating Defendant, § 908.045(4)
State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether the pretrial statement of defendant’s sister, who failed to appear at trial, was admissible as a statement against penal interest, § 908.045(4).
Holding: A hearsay statement must be broken into its constituent parts, each viewed separately. ¶18. This statement has two parts.
Hearsay – Against-Penal Interest Statement Inculpating Defendant, § 908.045(4)
State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski
Issue: Whether the codefendant’s noncustodial statement to the police — which, although not acknowledging responsibility for the murder, did admit to threatening the victim and placing both defendants at the scene —