On Point blog, page 14 of 16
Evidence Excluded from Case-in-Chief for Discovery Violation Admissible on Rebuttal; Appellate Review: Omitted Transcript Presumed to Support Discretionary Trial Court Ruling; Sleeping Juror
State v. Brent T. Novy, 2012 WI App 10 (recommended for publication), petition for review granted, 6/13/12; for Novy: Joseph George Easton; case activity
Rebuttal – Evidence Excluded from Case-in-Chief for Discovery Violation
Expert witness testimony, excluded from the State’s case-in-chief as a sanction failure to identify the witness during discovery, was admissible on rebuttal to attack the defendant’s testimony after he testified.
Notice of Alibi, § 971.23(8): DA Comment on Missing Witness; Appellate Procedure, Forfeiture of Issue: Sleeping Juror
State v. Forrest Andre Saunders, 2011 WI App 156 (recommended for publication); for Saunders: Robert A. Kagen; case activity
Notice of Alibi, § 971.23(8) – DA Comment on Missing Witness
“Alibi” merely refers to the fact that the defendant was elsewhere when the alleged occurred, ¶21, citing, State v. Brown, 2003 WI App 34, ¶13, 260 Wis. 2d 125, 659 N.W.2d 110.
Discovery Violation, § 971.23(1)(g) – Prejudice
State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11
court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity
The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted first-degree intentional homicide: 1. the erroneously admitted trajectory rod evidence “severely undermined”
Sexual Assault; Charging Document; Excited Utterances; Newly Discovered Evidence
State v. Dion M. Echols, 2010AP2626-CR, District 1, 9/27/11
court of appeals decision (not recommended for publication); for Echols: Amelia L. Bizzaro; case activity
Evidence held sufficient to establish “great bodily harm” element of 1st-degree sexual assault, § 940.225(1)(a), where the harm was inflicted a short time after the assault.
¶23 In this case, the trial court properly determined that Echols’ shooting M.F. subsequent to the nonconsensual sexual contact constituted great bodily harm.
Discovery Violation – Harmless Error; Defendant’s Right not to Testify – Evidentiary Hearing
State v. Daniel E. Krueger, 2011AP571-CR, District 3, 8/2/11
court of appeals decision (1-judge, not for publication); for Krueger: Ana Lyn Babcock; case activity
Prosecutorial failure to disclose a police report containing his statements that “were incriminating and any reasonable prosecutor would have planned on using them at trial” violated Krueger’s right to discovery, ¶23, citing State v. DeLao, 2002 WI 49,
State v. Harry Thompson, 2009AP1505-CR, review granted 5/25/11
on petition for review of unpublished decision; for Thompson: J.P. La Chapelle; case activity
Issues (provided by court):
Whether the failure to inform Thompson of the applicable mandatory minimum sentence of 25 years of incarceration prior to trial violated Thompson’s constitutional due process rights.
Whether the complaint in this case was defective under Wis. Stat. § 970.02(1)(a) because it did not state the applicable mandatory minimum sentence,
Newly Discovered Evidence; In Camera Inspection, Psychological Treatment Records; Evidence – Restriction on Expert Testimony
State v. Crystal P. Keith, 2010AP1667-CR, District 1, 5/24/11
court of appeals decision (not recommended for publication); for Keith: John A. Pray; case activity
On Keith’s conviction for reckless homicide in beating death of foster son, statements of her biological daughter (such as, “Why does mama have to go to jail for what my daddy did”) didn’t satisfy the test for newly discovered evidence. Keith’s confession to the police “was so detailed”
Complaint – Sufficiency; Standard of Review – Transcripts not in Record
State v. Michael L. Gengler, 2010AP1999, District 2, 4/6/11
court of appeals (1-judge, not for publication); pro se; case activity
¶6 The trial court determined that the complaint and the amended complaint were proper, stating,
The complaint was duly sworn on oath. The complaint was signed and filed by an assistant district attorney as prescribed by WIS. STAT. § 968.02(1). The complaint alleges multiple violations of WIS.
Stalking, § 940.32: Notice of Charge, “Course of Conduct” / Elevation from Class I to H Felony Status
State v. Janet A. Conner, 2011 WI 8, affirming 2009 WI App 143; for Conner: Stephen E. Mays; case activity; Conner BiC; State Resp.; Reply
Stalking, § 940.32 – Notice of Charge, “Course of Conduct”
Stalking requires proof of, among other elements, a “course of conduct” which “means a series of 2 or more acts carried out over time,
Obstructing – Complaint, Probable Cause; Self-representation
State v. Richard A. Wusterbarth, 2010AP1306-CR, District 3, 2/1/11
court of appeals decision (1-judge, not for publication); for Wusterburth: Eileen A Hirsch, SPD, Madison Appellate; case activity; Wusterburth BiC; State Resp.; Reply
The complaint established probable cause for obstructing, § 946.41(1), by alleging that Wusterburth made a false report to the police that a neighbor was manufacturing drugs,