On Point

State v. Gary L. Gordon, 2002 WI App 53, affirmed, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether proof-of-service documents, introduced to show defendant’s knowledge of a domestic violence injunction, violated the hearsay rule.

Holding:

¶43. … However, these documents were not made under oath or attested to in any way; thus, they were not affidavits.

State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶18. Shelleen Joyner argues that Trudy Joyner’s statement is against her penal interest, however, because Trudy Joyner admitted that she “knowingly helped a robber escape.” We disagree. “[W]hen ruling upon a narrative’s admissibility … a court must break it down and determine the separate admissibility of each ‘single declaration or remark.’”

State v. Zebelum Smith, 2002 WI App 118, PFR filed 5/9/02
For Smith: Erich C. Straub

Issue: Whether, as a foundational requirement for introducing a witness’s prior inconsistent statement, the witness must be given the opportunity to explain or deny the statement.

Holding: Although § 906.13(2)(a)1 suggests that the witness must first be given opportunity to explain or deny, it adds that the prior inconsistent statement is admissible if the witness hasn’t been excused from testifying:

¶13.

State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02

Issue/Holding: Child-sexual-assault-victim’s hearsay statement in this revocation case satisfies test for admissibility under residual exception, State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988).

State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate

Issue: Whether Williams satisfied the unavailability requirement necessary to admit a declarant’s against-interest hearsay statement exculpating the defendant, § 908.045(4).

Holding: Unavailability is determined by § 908.04(1)(e), and requires a “good-faith effort” and due diligence” in attempting to secure the declarant’s presence, ¶62.

State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate

Issue:/Holding: The exclusion of hearsay evidence proffered by the defense is tested under the “two-part framework” of State v. St. George, 2002 WI 50, ¶51, or “whether the proffered evidence was ‘essential to’ the defense, and whether without the proffered evidence, the defendant had ‘no reasonable means of defending his case.’”

State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether the pretrial statement of defendant’s sister, who failed to appear at trial, was admissible as a statement against penal interest, § 908.045(4).

Holding: A hearsay statement must be broken into its constituent parts, each viewed separately. ¶18. This statement has two parts.

State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski

Issue/Holding: Confessions to fellow inmates are sufficiently reliable to allow admissibility without confrontation.

Issue/Holding: The codefendant’s (defendant’s brother) against-penal-interest statement to the police didn’t violate the confrontation clause, where the declarant “was not in custody and there is no indication he was threatened with prosecution or asked leading questions.”

State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski

Issue: Whether the codefendant’s noncustodial statement to the police — which, although not acknowledging responsibility for the murder, did admit to threatening the victim and placing both defendants at the scene —

State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds

Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness’s “real and appreciable apprehension” of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony.