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Evidence – Sufficiency of Objection, Admissibility – Specificity of Ground Required

State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg

Issue: Whether a trial-level objection that a dismissed witness was unavailable for cross-examination on a prior statement was specific enough to preserve an appellate argument that the witness wasn’t given an opportunity to explain or deny the statement.


¶31 The State argues that Nelis did not object at trial to the admission of the statements on the ground of Wis. Stat. § 906.13(2)(a), and therefore waived that issue. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 (“It is a fundamental principle of appellate review that issues must be preserved at the circuit court.”). The State contends that Nelis’ objection that the oral statements of Steve Stone were hearsay was insufficient to preserve Nelis’ claim now that the statements were inadmissible under § 906.13(2)(a). We agree with the State’s argument that Nelis’ objection to the oral statements was not specific enough to preserve his claim that the admission of Steve Stone’s oral statement contravened § 906.13(2)(a). An objection is sufficient to preserve an issue for appeal, if it apprises the court of the specific grounds upon which it is based. In Interest of Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845 (1998). A general objection that does not indicate the specific grounds for inadmissibility of evidence will not suffice to preserve the objector’s right to appeal. State v. Tutlewski, 231 Wis. 2d 379, 384, 605 N.W.2d 561 (Ct. App. 1999).

¶33      Police Chief Stone later testified that Steve Stone told him that he had seen Nelis on top of Diane S., and that Diane S. was crying and bleeding. Steve Stone’s oral statements given to Police Chief Stone were not hearsay. Rather, the statements were admissible under Wis. Stat. § 908.01(4)(a), because Steve Stone was a testifying witness who testified at trial concerning his statements to the police on the night in question, because he was subject to cross-examination concerning those statements, and because the prior oral statements were inconsistent with his testimony at trial.

¶34 During the direct examination of Police Chief Stone, Nelis’ counsel objected to the oral statements of Steve Stone on the grounds that the statements were inadmissible pursuant to Wis. Stat. § 908.04(1)(c), claiming that Steve Stone was unavailable, thus not “subject to cross-examination,” and that the statement violated Nelis’ confrontation right under Crawford, 541 U.S. 36. Nelis’ counsel did not, however, object on the ground of Wis. Stat. § 906.13(2)(a). We are satisfied that, because Nelis did not object to the admissibility of Steve Stone’s oral statements on the ground of § 906.13(2)(a), such argument was waived for failure to state it with sufficient specificity before the circuit court. State v. Givens, 217 Wis. 2d 180, 195, 580 N.W.2d 340 (Ct. App. 1998).

Steve Stone testified, and was dismissed as a witness. Chief Stone then testified to a prior statement Steve Stone had made. The concurrence makes the point that prosecutorial witness-declarant Steve Stone wasn’t “subject to cross-examination concerning the statement,” as required by § 908.01(4), because the defense simply was never informed of the prior statement, ¶¶56-63. However, the defense never showed that Steve Stone was “unavailable” after being dismissed as a witness and for that reason it can’t be said he wasn’t “subject to cross-examination,” ¶¶64-72. The majority, though a bit less than crystal-clear, apparently agrees with the concurrence on this point, ¶46 n. 5. Take careful note, then, of the dissent observation that § 906.13(2)(a), requires “that a witness must be given the opportunity, while testifying, to explain or to deny the statement,” ¶62:

¶63      … Contemplating the fact situation before us, a leading treatise on Wisconsin evidence concludes that for purposes of Wis. Stat. § 908.04(1), a witness is not subject to cross-examination “where the prior statement is never mentioned during the examination of the witness, the witness is then excused from testifying, and the statement is later proffered through extrinsic evidence (i.e., another witness or a document).” 7 Daniel D. Blinka, Wisconsin Practice: Evidence 544 (2d ed. 2001). …

Stress, “is then excused”: when that condition doesn’t obtain then failure to mention the statement to the witness doesn’t bar extrinsic proof, State v. Zebelum Smith, 2002 WI App 118, ¶13. (Just some things to keep in mind during the heat of trial.)

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