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First-Degree Intentional Homicide – Sufficiency of Evidence; Evidence – Habit, § 904.06(1)

State v. Thomas C. Niesen, 2010AP1864-CR, District 2, 10/5/11

court of appeals decision (not recommended for publication); for Niesen: James A. Rebholz; case activity

Evidence held sufficient to sustain conviction § 940.01(1), court rejecting argument that State failed to prove that Niesen inflicted the fatal knife wound. (Niesen made certain damaging admissions; he met the description of the man last seen with the victim; his sperm was found in the ¶¶2-21.

Admission into evidence of the knife Niesen was carrying at his arrest, some 23 years after the homicide (1976), was admissible:

¶23      First, Niesen claims the trial court erred in admitting into evidence and publishing to the jury the knife which Niesen owned at the time of his arrest in 2009.  We disagree.  At trial, the State introduced the unobjected-to testimony of Shuck that in 1976 Niesen carried, at different times, a couple different types of knives and sometimes would carry one to the bars they frequented.  The State further introduced the unobjected-to testimony of Crull that Niesen was in the habit of carrying a knife around with him in 1985-86, including at clubs.  Crull testified that the knife provided in 2009 looked similar to the knife she saw Niesen carry in 1985-86.  The evidence was relevant to prove that Niesen was known to carry a knife at the time of the murder and known to always carry one ten years later when he was with Crull.  See Wis. Stat. § 904.06(1) (“evidence of the habit of a person … whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person … on a particular occasion was in conformity with the habit or routine practice”).

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