State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether defendant waived an objection to the violation of an in limine order, by waiting until a recess to enter an objection.
¶17. When the State violated the stipulation and the court’s order at trial, English- Lancaster did not immediately object. Instead, he first raised the issue when the jury was next excused. The State’s argument for application of the contemporaneous objection rule puts English-Lancaster in a classic ‘Catch-22’ position. By not objecting, English-Lancaster is held to waiver. By objecting, English-Lancaster draws the jury’s attention to the very prejudicial other acts evidence that the trial court had already ruled inadmissible. Recalling that one of the purposes of the contemporaneous objection rule is fairness (Davis, 199 Wis. 2d at 518), we will not apply the rule to permit such an unfair dilemma. The facts of this case do not demonstrate that English-Lancaster tactically laid in the weeds and then raised the issue later only when it was to his advantage. Erickson, 227 Wis. 2d at 766. We reject the State’s contemporaneous objection argument.