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Newly Discovered Evidence; In Camera Inspection, Psychological Treatment Records; Evidence – Restriction on Expert Testimony

State v. Crystal P. Keith, 2010AP1667-CR, District 1, 5/24/11

court of appeals decision (not recommended for publication); for Keith: John A. Pray; case activity

On Keith’s conviction for reckless homicide in beating death of foster son, statements of her biological daughter (such as, “Why does mama have to go to jail for what my daddy did”) didn’t satisfy the test for newly discovered evidence. Keith’s confession to the police “was so detailed” that her child’s statements didn’t establish “a reasonable probability that a jury would have reasonably doubted Keith’s guilt.” Moreover, the statements “were not ‘newly discovered,’ because Keith was aware of everything [the child] could have testified to.” (¶¶6-10). Four-element test, de novo standard of review, recited, ¶7.

Keith wasn’t entitled to have the trial court undertake an in camera inspection of her child’s counseling records, against a claim that the records would reveal each parent’s role, or lack thereof, in on-going abuse in the household. The request for such review rested “on pure speculation,” ¶13. Test for in camera inspection of confidential records recited, ¶12.

The trial court properly exercised discretion in allowing a defense expert to testify about his diagnoses of Keith’s psychological disorders but not Keith’s history of abuse.

¶17      With regard to psychological/psychiatric testimony, our supreme court has held that “‘a [psychologist] may not give his or her opinion on the issue of capacity to form intent if that opinion rests in whole or in part on the defendant’s mental health history.’”  State v. Morgan, 195 Wis. 2d 388, 410, 536 N.W.2d 425 (Ct. App. 1995) (citation omitted).  “[Psychological] opinion testimony which tends to prove or disprove intent is ‘neither competent, relevant, nor probative.’”  Id. (citation omitted).  Although all expert opinion evidence from a mental health expert is not considered inadmissible, “‘a [psychologist] is not permitted to testify as to the effect of a defendant’s [psychological] condition on his or her capacity to form the requisite intent.’”  Id. at 411 (citation omitted).

¶18      Although a charge of reckless homicide does not carry an intent element,[3] Keith’s argument centers on what she considers her mental inability to form the state of mind necessary to commit the crimes for which she was convicted.  The trial court permitted Dr. Kula to testify about his various diagnoses as well as the general characteristics of those diagnoses and the jury was free to infer on its own how characteristics of those diagnoses may have impacted Keith’s perception and comprehension.  The trial court did not err when it limited Dr. Kula’s testimony to just that.

Morgan, it should be noted, sought habeas relief, ultimately without success despite a district court grant, Morgan v. Krenke, 232 F.3d 562, 565-66 (7th Cir.2000).

Keith wasn’t entitled to a change of venue, notwithstanding significant media exposure of the alleged crime. The local media reported factually (as opposed to editorializing) on victim’s death. “Factual reports of a newsworthy event are not considered prejudicial,” ¶25, citing Briggs v. State, 76 Wis. 2d 313, 327, 251 N.W.2d 12 (1977). Moreover, “the record reflects that great care was taken in the jury selection process, minimal difficulty was encountered and the selected jurors had minimal familiarity with the publicity,” ¶28. Test for change of venue, appellate standard of review, recited, ¶23.


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