On Point blog, page 61 of 68

Expert — Qualifications

State v. Larry J. Sprosty, 2001 WI App 231, PFR filed

For Sprosty: Jack E. Schairer, SPD, Madison Appellate

Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding.

Holding: Because the witness had “expertise with respect to treating sex offenders … she was qualified to give her opinion on the ultimate issue.” ¶29.

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False Testimony

State v. Larry J. Sprosty, 2001 WI App 231, PFR filed

For Sprosty: Jack E. Schairer, SPD, Madison Appellate

Issue: Whether an expert witness’s testimony should have been struck retrospectively when it became known, after the proceeding had concluded, that he had lied about his credentials and background, and had committed misconduct, causing him to be fired.

Holding: “¶33. We cannot conclude that the circuit court’s refusal to strike Thomalla’s testimony was improper.

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Plea Bargains — Breach: Proecdural Issues — Waiver of Objection — Renegotiated Plea

State v. David W. Oakley, 2001 WI 103, 629 N.W.2d 308, reconsideration denied, 2001 WI 123, affirming unpublished decision of court of appeals
For Oakley: Timothy T. Kay

Issue: Whether a claim of plea bargain error was waived by a subsequent renegotiation of the plea bargain and entry of no contest plea on that new agreement.

Holding:

¶23  As this court has previously stated,

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Self-Defense – “McMorris” Acts of Prior Violence by Victim – Procedure on Determining Admisssibility

State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau

Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.

Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession;

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Plea Bargains — Breach: Waiver

State v. Michael F. Howard, 2001 WI App 137

Issue/Holding: Failure to object to plea bargain breach waives the issue, leaving ineffective assistance of counsel the only mechanism for raising it. ¶21.

Also see, State v. Harold Merryfield, 229 Wis.2d 52, 598 N.W.2d 251 (Ct. App. 1999) (asserted plea bargain violation held waived, under State v. Smith, 153 Wis. 2d 739, 451 N.W.2d 794 (Ct.

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Plea Bargains — Breach: Procedural Issues — Preservation by Objection

State v. John D. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164, affirmed without discussing this issue, 2002 WI 1
For Williams: John A. Pray

Issue: Whether the defendant properly preserved objection to a prosecutorial breach of plea bargain.

Holding: ¶13:

(T)he trial court recognized it as an objection and initially agreed with Williams’s attorney. The objection was sufficient.

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Particular Examples of Misconduct, § 904.04(2) — Prior Child Abuse — Trial on Homicide of Child

State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether evidence of prior child abuse, both to the immediate victim and another child, was properly admitted in a trial on homicide of a child.

Holding: There was sufficient evidence for a reasonable jury to find by a preponderance of the evidence that the defendant committed the various prior acts.

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Particular Examples of Misconduct, § 904.04(2) — Admissibility — in General

State v. Joseph F. Rizzo, 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 824, reversed and remanded on other grounds2002 WI 20
For Rizzo: Franklyn M. Gimbel

Issue: Whether admission of other acts evidence was an erroneous exercise of discretion.

Holding:

¶5 … In a written decision, the trial court properly applied the Sullivan three-step analysis:

The acts which took place some years ago are remarkably similar to the allegations before the Court in this case …

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Particular Examples of Misconduct, § 904.04(2) — Prior Sexual Assault of Adult — Relevance to Charge of Child Sexual Assault — Dissimilarities, Including Age Disparity of Victims

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether a prior sexual assault of an adult was sufficiently similar to the charged sexual assault of a child to be admissible as other crimes evidence.
Holding:

¶14. The next step is whether the 1992 conviction was relevant; that is, whether under Wis. Stat. § 904.01, it relates to a fact or proposition that is of consequence to the determination of the action and if it has probative value.

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“Shiffra” Material — In Camera Inspection

State v. Terrance W. Walther, 2001 WI App 23, 240 Wis. 2d 619, 623 N.W.2d 205
For Walther: Raymond M. Dall’Osto, Kathryn A. Keppel

Issue: Whether the defendant’s motion for in camera inspection of the child sexual assault complainant’s confidential records should have been granted.

Holding:

¶11 Here, Walther established more than the mere possibility that the requested records ‘may be necessary to a fair determination of guilt or innocence.’

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