State v. Boon Savanh, 2005 WI App 245 For Savanh: Timothy A. Provis Issue/Holding: ¶32, n. 4: A statement made by a coconspirator in furtherance of the conspiracy is not a hearsay “exception”; it expressly is not hearsay. Wis. Stat. § 908.01(4)(b)5. (2003-04). While hearsay “exemption” is a more appropriate term, statements made under this subsection… Read more
Published 2005
State v. Jermaine Smith, 2005 WI App 152, PFR filed For Smith: Glen B. Kulkoski Issue: Whether a co-actor’s in-custody pretrial statements were admissible as impeachment on rebuttal after the defense introduced a different hearsay statement by that declarant. Holding: ¶10 The State’s rebuttal was solely to impeach Nunn’s credibility under the provisions of Wis… Read more
State v. Kevin D. James, 2005 WI App 188 For James: Terry W. Rose Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.This statutory procedure allows the State to introduce a child’s videotaped statement, with the… Read more
State v. Tyrone Booker, 2005 WI App 182 For Booker: Jeffrey W. Jensen Issue: Whether the trial court erroneously exercised discretion under the rape-shield law, and denied effective cross-examination, by excluding evidence of semen swabs of the alleged sexual assault victim not linked to Booker, where the allegations against him involved touching not intercourse. Holding: ¶16 …… Read more
State v. Lionel N. Anderson, 2005 WI App 238 For Anderson: Harry R. Hertel; Steven H. Gibbs Issue/Holding: Evidence of flight is not other-acts evidence but, rather, “an admission by conduct”; thus, evidence that Anderson fled the state after learning that the police had been contacted was admissible, ¶29, citing, State v. Earl L. Miller… Read more
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed For Draughton: Stephen L. Miller Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they… Read more
State v. Joseph L. Smet, 2005 WI App 263 For Smet: Christopher A. Mutschler Issue/Holding: Proof of “impairment” is not a necessary element of § 346.63, ¶¶12-16. Section 346.63(1)(am) (driving under influence of detectable amount of THC, regardless of impairment) is constitutional as against police power, due process, and equal protection attack, ¶¶6… Read more
State v. Kimberly B., 2005 WI App 115 For Kimberly B.: Anthony G. Milisauskas Issue/Holding: ¶30 While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that… Read more
