On Point blog, page 6 of 6
Prosecutorial Failure to Disclose Evidence; Deficient Performance – Failure to Suppress Showup
State v. Melvin G. Walton, No. 2009AP001304-CR, District I, 6/22/10
court of appeals decision (3-judge, not recommended for publication); for Walton: Byron C. Lichstein; BiC; Resp.; Reply
Prosecutorial Failure to Disclose Evidence
¶28 The State has two separate evidence-disclosure responsibilities: a statutory responsibility imposed by WIS. STAT. § 971.23 and a constitutional responsibility imposed by Brady v. Maryland,
Appellate Procedure: State’s Waiver; Exculpatory Evidence: State’s Failure to Preserve
State v. Kyle Lee Huggett, 2010 WI App 69; for Huggett: Craig A. Mastantuono; BiC; Resp; Reply
The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14.
Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is that the respondent on appeal may raise any argument,
State v. Peter A. Oliver, No. 2008AP3050, District IV, 3/18/10
court of appeals decision (3-judge, not recommended for publication); for Oliver: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.
SVP – Evidence
1. Unobjected-to testimony by a state evaluator that DHS psychologists are more “conservative” in their conclusions than other SVP experts did not “cloud” the issue and therefore did not support new trial in the interest of justice,
State v. Clifford Dewayne Walker, 2008AP3180-CR, District I, 3/9/10
court of appeals decision (3-judge; not recommended for publication); Resp. Br; Reply Br
Exculpatory Material
Defense had access to assertedly suppressed exculpatory material, hence no Brady violation.
Effective Assistance
Counsel had valid tactical reason for cross-examination approach; failure to file discovery demand, object to certain testimony: “The defendant must affirmatively prove prejudice. … Walker has not even attempted to do so.
Closing Argument: Prosecutorial Misconduct – Interest-of-Justice Review
State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray
Prosecutorial Misconduct – Closing Argument
Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling:
¶1 State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis. 2d 382,
State v. James D. Lammers, 2009 WI App 136
Plain error rule; DA’s “vouching” during closing argument
Click here for court of appeals decision
Defense counsel: Amelia L. Bizzaro
Issue/Holding:
¶12 “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App.
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,
Waiver – Closing Argument: Failure to Move for Mistrial
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Failure to move for mistrial waives objection to closing argument, ¶28, citing State v. Dale H. Davidson, 2000 WI 91, ¶86, 236 Wis.