On Point blog, page 2 of 3
SCOW: Prosecutor’s closing argument did not ask jurors to draw inference he knew was untrue
State v. Joel M. Hurley, 2015 WI 35, 3/31/15, reversing an unpublished per curiam court of appeals decision; opinion by Justice Gableman; case activity (including briefs)
Disagreeing with the circuit court’s holding that Hurley was entitled to a new trial in the interest of justice, the supreme court holds that the prosecutor did not improperly refer in closing argument to Hurley’s testimony that he could not “recall” allegations regarding sexual assaults that were admitted as other-acts evidence.
Haseltine “Vouching” Rule: Inapplicable to Pre-trial Interrogation; Closing Argument: Waiver of Objection (Prosecutor Terming Defendant Liar)
State v. Andre L. Miller, 2012 WI App 68 (recommended for publication); for Miller: Jeffrey J. Guerard; case activity
Haseltine “Vouching” Rule
The anti-vouching rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (one witness may not comment on the credibility of another witness) isn’t applicable to a pre-trial interrogation during which the detective describes the defendant as lying.
TPR – Closing Argument, GAL – Ineffective Assistance of Counsel
State v. Corrine J., 2011AP1916 / State v. Dalvin C., Sr., 2011AP1882, District 1, 3/27/12
court of appeals decision (1-judge, not for publication); for Corrine J.: Melinda A. Swartz, SPD, Milwaukee Appellate; for Dalvin C.: Jeffrey W. Jensen; case activity
Trial counsel’s failure to object to the guardian ad litem’s closing argument wasn’t prejudicial, given the strength of the case for terminating parental rights. (The argument, merits of which the court doesn’t reach,
OWI – Sufficiency of Evidence; Closing Argument – Explanation of Element (“Operate,” OWI)
City of Beloit v. Steven A. Herbst, Sr., 2010AP2197, District 4, 1/12/12
court of appeals decision (1-judge, not for publication); for Herbst: Tracey A. Wood; case activity
Evidence held sufficient to support OWI conviction, where Herbst was found in parked car, slumped over the steering wheel with the engine running, along with evidence that the designated driver gave Herbst the keys to the vehicle so he could go to sleep.
TPR – Removal of Element from Jury – Closing Argument, Misstatement, Interest of Justice
Florence County Department of Human Services v. Jennifer B., 2011AP88, District 3, 8/19/11
court of appeals decision (1-judge, not for publication); for Jennifer B.: Martha K. Askins, Shelley Fite, SPD, Madison Appellate; case activity
Removal from jury consideration of a ground for termination (CHIPS orders) without prior discussion between court and parties was error:
¶10 While we agree that a directed verdict is available in the grounds phase of a TPR proceeding,
Prosecutorial Misconduct – Closing Argument – Harmless Error
State v. Richard K. Numrich, 2010AP1544-CR, District 2, 8/3/11
court of appeals decision (1-judge, not for publication); for Numrich: Chad A. Lanning; case activity
Instances of prosecutorial misconduct (objecting in the jury’s presence to a line of questioning that implied the existence of inadmissible evidence; stating in closing argument that it is defense counsel’s “job to create doubt”) warranted neither mistrial, ¶¶15-16 (especially in light of curative instruction);
Obstructing, § 946.41(1) – Sufficiency of Evidence; Effective Assistance – Prosecutor’s Closing Argument
State v. Keith A. Stich, 2010AP2849-CR, District 2, 6/22/11
court of appeals decision (1-judge, not for publication); for Stich: Andrew Joseph Burgoyne; case activity
Stich’s failure to heed an officer’s instruction to stop – instead, Stich walked away and into his house and encouraged his companion Lidbloom to do likewise – established the crime of obstructing. The police were investigating an earlier incident, and “Stich’s actions, which delayed the deputies’ ability to question Lidbloom,
Ineffective Assistance of Counsel – Voluntary Intoxication; Ineffective Assistance – State’s Closing Argument
State v. Richard L. Daniels, 2010AP1715-CR, District 3, 2/23/11
court of appeals decision (1-judge, not for publication); for Daniels: John M. Carroll; case activity
Ineffective Assistance of Counsel – Voluntary Intoxication
Voluntary intoxication requires that the defendant establish utter lack of capability to form the requisite intent; because Daniels’ version couldn’t make this showing, counsel’s failure to pursue the defense wasn’t deficient performance.
¶12 It was reasonable for Daniels’ trial counsel to view Daniels’ version of events as inconsistent with a voluntary intoxication defense,
Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence
State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.
Evidence – Daubert – Bullet Traced to Particular Gun
The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:
¶22 Unlike in the federal system,
Closing Argument – Reference to Defendant’s Failure to Testify
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:
¶81 …
[F]or a prosecutor’s comment to constitute an improper reference to a defendant’s failure to testify,