On Point blog, page 62 of 68
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.
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.
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.
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 grounds, 2002 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 …
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.
“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.’
Witness – 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.
Holding:
¶33. We cannot conclude that the circuit court’s refusal to strike Thomalla’s testimony was improper.
Witness – Impeachment — Post-Miranda Silence
State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
Issue/Holding:
¶31. The privilege against self-incrimination is guaranteed by art. I, § 8, of the Wisconsin Constitution and by the Fifth Amendment to the United States Constitution. State v. Adams, 221 Wis. 2d 1, 7, 584 N.W.2d 695 (Ct. App. 1998). The use of a defendant’s silence for impeachment purposes has been long decided.
Character — Defendant’s Record Used to Cross-Examine Alibi Witnesses
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether the prosecutor properly cross-examined an alibi witness as to what the defendant had told him about his prior offense.
Holding:
¶21. Further, even if the 1992 conviction could have been properly admitted, using this evidence on cross-examination was improper. Other acts evidence is admitted for a specific purpose.
“Jensen” Testimony, “Maday” Remedy – Right to Examine Complainant’s Psychological Condition
State v. Joseph F. Rizzo, 2002 WI 20, reversing and remanding 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 854
For Rizzo: Franklyn M. Gimbel
Issue1: Whether testimony by a state’s expert amounted to “Jensen” testimony, i.e., expert opinion that the sexual assault complainant’s behavior was consistent with that of sexual assault victims in general.
Holding:
¶21.