On Point blog, page 12 of 16
Court of Appeals upholds statute making hearsay admissible at preliminary hearings and allowing bindover based solely on hearsay
State v. Martin P. O’Brien, State v. Kathleen M. O’Brien, and State v. Charles E. Butts, 2013 WI App 97; consolidated court of appeals decision; case activity: Martin O’Brien; Kathleen O’Brien; Charles Butts.
¶1 The newly enacted Wis. Stat. § 970.038 (2011-12) makes hearsay evidence admissible at a criminal defendant’s preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence.
Change of venue based on pretrial publicity; denial of speedy trial; newly discovered evidence
State v. Michael T. O’Haver, 2011Ap2930-CR, District 2/4, 6/20/13; court of appeals decision (not recommended for publication); case activity
Change of venue
The circuit court did not erroneously exercise its discretion in denying O’Haver’s motion to change venue, applying State v. Albrecht, 184 Wis. 2d 287, 306, 516 N.W.2d 776 (Ct. App. 1994). There were a limited number of potentially objectionable pretrial media reports describing the homicide and distress of the victim’s family.
Statute of limitations, § 939.74(1) — sufficiency of “John Doe” complaint’s identification of defendant for purposes of tolling statute of limitations; denial of right to self-representation or to substitution of counsel
State v. Rodney Washington, 2012AP1015-CR, District 1, 3/26/13; court of appeals decision (not recommended for publication); case activity
Statute of limitations, § 939.74(1) — sufficiency of “John Doe” complaint’s identification of defendant for purposes of tolling statute of limitations
The crimes in this case—sexual assault and robbery—were alleged to have occurred in 1994 and 1995. In 2000, eleven days before the statute of limitations was to run,
Evidence excluded from state’s case-in-chief because of discovery violation is admissible in rebuttal; “sleeping juror” issue resolved by lack of finding that juror was sleeping
State v. Brent T. Novy, 2013 WI 23, affirming 2012 WI App 10; case activity
Evidence excluded from state’s case-in-chief because of discovery violation is admissible as rebuttal evidence
The trial court excluded the state from presenting fingerprint evidence in its case-in-chief because the state failed to properly disclose the evidence under Wis. Stat. § 971.23(1)(g). But after Novy testified, the court allowed the state to put the evidence in during its rebuttal case.
Right to unanimous jury verdict; continuing course of conduct chargeable as one count
State v. David J. Galarowicz, 2012AP933-CR, District 3, 12/11/12
court of appeals decision (1 judge; not eligible for publication); case activity
Galarowicz was not denied his right to a unanimous jury verdict on one count of disorderly conduct where the evidence showed an incident of disorderly conduct with the victim in the residence and additional conduct with the same victim in the residence after a twenty-minute pause.
Complaint – Adequate Notice; Jury Instructions – Authorizing Guilty Verdict on Speculation
State v. Darryl J. Badzinski, 2011AP2905-CR, District 1, 11/27/12; court of appeals decision (not recommended for publication), petition for review granted 4/18/13; reversed, 2014 WI 6; case activity
Complaint – Adequate Notice (Child Sexual Assault) – Waived Objection
Badzinski waived his objection to the complaint – counsel conceded, at a motion to dismiss because of vagueness,
Joinder: Felon-in-Possession and Offense Involving Weapon
State v. Joshua A. Prescott, 2012 WI App 136; case activity
Felon-in-possession, § 941.29, was properly joined for trial with reckless injury by use of dangerous weapon:
¶17 Based on our review of the record, we agree with the trial court that the charges were properly joined. The felon in possession and reckless injury charges were “based on the same act or transaction.” See Wis.
Other-Acts Evidence: Criminal-Enterprise Activity; Exculpatory Evidence: Disclosure in Fact Made; Appellate Procedure: Incomplete Record Supports Trial Decision
State v. Michael Anthony Lock, 2012 WI App 99 (recommended for publication); case activity
Other-Acts Evidence
Lock was tried and convicted for homicide, kidnapping and possession with intent to deliver. The State elicited testimony from numerous witnesses to the effect that Lock headed a vast criminal enterprise, of which these crimes were a part in that the two homicide victims were drug dealers, whom Lock killed (or ordered killed) over drug money.
Charging Document (Complaint) – Notice – Mandatory Minimum
State v. Harry Thompson, 2012 WI 90, reversing unpublished decision; case activity
Section 970.02(1)(a) imposes several mandatory duties at initial appearance: the judge must inform the defendant of the charge, furnish him with a copy of the complaint, and personally inform him of the penalties for any felonies in the charge; and, the complaint must set forth the possible penalties, ¶62. These obligations apply to any offense in the complaint carrying a mandatory minimum sentence,
State v. Leilani E. Neumann, 2011AP1105-CR / State v. Dale R. Neumann, 2011AP1044-CR, rev. granted 6/13/12
on review of certification request; for Leilani Neumann: Byron C. Lichstein; case activity; for Dale Neumann: Stephen L. Miller; case activity
Reckless Homicide and “Faith Healing” as Substitute for Medical Treatment
Issues (Composed by On Point):
1. Whether the “faith healing” defense in § 948.03(6) is limited to prosecutions for child abuse or extends to reckless homicide, § 940.06(1).
2.