On Point blog, page 62 of 68
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.
Expert Witness Qualifications – SVP Supervised Release
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.”
Hearsay – Prior Consistent Statement, § 908.01(4)(a)2
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue: Whether the alleged victim’s entire testimony at prior proceedings was properly admitted into evidence, under prior consistent statement or rule of completeness rationales.
Holding:
¶25. The trial court admitted the entire prior testimony under two theories: (1) the testimony constituted prior consistent statements under Wis. Stat.