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Waiver of Argument

State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis


¶11   As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury’s presence. The circuit court denied Burton the requested voir dire [1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton’s intent. Burton was not obliged to restate his objections in the jury’s presence and thereby emphasize the testimony he believed prejudicial. See State v. Bergeron, 162 Wis. 2d 521, 527-29, 470 N.W.2d 322 (1991). [2]¶12   As to Burton’s failure to raise a due process claim below, though Burton now states his claim in Constitutional language, his argument here is essentially the same as the one he made in the trial court: that Warmington’s testimony was highly and unfairly prejudicial and that its probative value was very limited. Though Burton identifies the Constitution as the grounds of his appeal, the line of cases on which he relies deals with evidentiary principles. [3] The State has addressed the same cases and arguments. As the State acknowledges, the rule of waiver is one of administration, not authority. See State v. Moran, 2005 WI 115, ¶31, 284 Wis. 2d 24, 700 N.W.2d 884. We see no just reason to avoid addressing Burton’s claims.

 [2] The State also argues that Burton “adduced some of the evidence now complained about on appeal.” All of the testimony herein discussed was elicited by the State’s direct questioning, with the exception of Warmington’s testimony that an “excited utterance” is “usually … a very truthful statement.” Though Warmington made this statement during cross-examination, it was not directly responsive to the question asked: “Excited utterance means basically just saying something in the heat of the moment, right?” This question does not constitute a waiver on Burton’s part.


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