On Point

State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09
For Lammers: Amelia L. Bizzaro

Issue/Holding:

¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine, which allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78, ¶¶28-29, 301 Wis. 2d 642, 734 N.W.2d 115. Plain error is “error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Sonnenberg, 117 Wis. 2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial,” and courts should use the plain error doctrine sparingly. Id.¶13      There is no bright-line rule for what constitutes plain error. … “[W]here a basic constitutional right has not been extended to the accused,” the plain error doctrine should be invoked. Id. at 195. Our courts have consistently used this constitutional error standard in determining whether to apply the plain error rule. State v. King, 205 Wis. 2d 81, 91, 555 N.W.2d 189 (Ct. App.1996).

¶14      If plain error occurred, the burden is on the State to prove that it was harmless beyond a reasonable doubt. …

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel

Issue/Holding: Unpreserved challenge to sexual assault nurse examiner’s testimony (that abrasions were consistent with forcible intercourse and that no complainant had ever provided her with an inaccurate history) didn’t rise to plain error:

¶12      As the circuit court noted, Stephan did not offer an opinion about the cause of Keri’s abrasion, she stated that the abrasion was “consistent” with an injury that resulted from “penetration.”  In fact, Stephan acknowledged that she did not know what caused the abrasion.  We have allowed such testimony in the past.  See, e.g., State v. Ross, 203 Wis. 2d 66, 79-81, 552 N.W.2d 428 (Ct. App. 1996) (allowing testimony because the nurse did not testify that the victim’s physical condition was the result of sexual assault).  Furthermore, we observe that Stephan’s objectionable statement regarding patient histories was elicited by defense counsel during cross-examination.  Counsel likely expected Stephan to testify that some complainants are not forthcoming but, surprisingly, she did not.  Our review of the record, particularly the whole of Stephan’s testimony, convinces us that the exercise of our discretionary reversal power is not required here.

She’d never been given “an inaccurate history during an exam” (¶5)? Sounds like powerfully damaging testimony where the case hinges on credibility, but at least the court distinctly labels it “objectionable,” and the fact that it came out on cross might blunt the impact by making the result fact-specific.

State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly

Issue/Holding: Foundational requirement of probative value applies to computer-generated animation used as demonstrative exhibit to recreate crime scene:

¶17      Turning to probative value, we examine the State’s failure to lay a foundation for the admission of the animation. See, e.g.,Gribble, 248 Wis. 2d 409, ¶57 (in determining probative value, the court considered the foundation laid and the credentials of the testifying witness). Again, the State relies on Roy in support of its contention that computer-generated animation may be admitted without witness testimony that the animation fairly and accurately depicts what it purports to depict. The State contends, based on Roy, that it is not required to lay a foundation for a computer-generated animation in the same way that one is laid for a photograph or video. … However, the Roy court’s determination was not based on the fact that the evidence sought to be admitted was an animation, as opposed to photograph or video. Rather, the Roy court was addressing an expert’s ability to use an animation to illustrate his or her opinion. Here, Ambach was not illustrating an expert opinion on possible scenarios, his animation showed distances, where the defendants, the victim and witnesses were, and “what people did.” We reject the State’s argument that computer-generated animation used as a demonstrative exhibit to show the scene and events of the alleged crime is exempt from longstanding foundation requirements. ^[8]

Issue/Holding: Foundational requirement of authentication value applies to computer-generated animation used as demonstrative exhibit to recreate crime scene:

¶18      A determination of relevance demands that evidence offered at trial be connected to the subject matter at issue. Authentication is a special aspect of relevancy and is preliminary and precedent to a question of admissibility. See Judicial Council Committee Note, 1974, Wis. Stat. § 909.01 Here, there was no authentication by any of the witnesses that the animation fairly and accurately represented their testimony and no single witness had firsthand knowledge as to what was depicted in the animation. See Wis. Stat. §§ 909.01 and 909.015^[9]; see also 2 Kenneth S. Broun, McCormick on Evidence § 214 (6th ed. 2006) (“The authenticating testimony from a witness would establish that the animated CGE is a fair and accurate representation of what the witness is trying to describe, and admission of the animation would be within the discretion of the trial judge.”). The computer-generated animation was introduced to clarify Giovannoni’s testimony; however, Giovannoni never testified that the animation fairly and accurately represented her recollection of the events.^[10] Although the animation was not expressly introduced to clarify Hohisel’s testimony, it incorporated aspects of his testimony and, like Giovannoni, Hohisel never testified to his belief that the animation captured his recollection of events. Neither did Biever. The confusion resulting from this compilation of testimony is evidenced in the trial court’s observation that the animation “illustrated” Giovannoni’s testimony when, in reality, it illustrated much more than that.

State v. Pablo G. Quiroz, 2009 WI App 120
For Quiroz: Glen B. Kulkoski

Issue/Holding:

¶18      Law and Discussion: It is well established that evidence of flight has probative value as to guilt. See State v. Knighten, 212 Wis. 2d 833, 838-39, 569 N.W.2d 770 (Ct. App. 1997). Analytically, flight is an admission by conduct. State v. Miller, 231 Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999). The fact of an accused’s flight is generally admissible against the accused as circumstantial evidence of consciousness of guilt and thus of guilt itself. Id. To be admissible, the defendant’s flight need not occur immediately following commission of the crime. See Gauthier v. State, 28 Wis. 2d 412, 419-20, 137 N.W.2d 101 (1965) (defendant escaped from custody while awaiting trial).

State v. Pablo G. Quiroz, 2009 WI App 120
For Quiroz: Glen B. Kulkoski

Issue/Holding:

¶21      Quiroz claims that under Miller, 231 Wis. 2d at 574, there is an automatic exception to the trial court’s discretionary ability to admit flight evidence whenever a defendant has an independent reason for flight that, if admitted, would unduly prejudice the defendant. Relying on his interpretation of Miller, Quiroz argues that the evidence of his flight was inadmissible because he proffered an independent reason for flight.

…

¶27      Our holding in Miller defeats rather than bolsters Quiroz’s argument. Flight evidence is not inadmissible anytime a defendant points to an unrelated crime in rebuttal. Rather, when a defendant points to an unrelated crime to explain flight, the trial court must, as it must with all evidence, determine whether to admit the flight evidence by weighing the risk of unfair prejudice with its probative value. Wis. Stat. § 904.03. As in Miller, the trial court performed the proper balancing test and determined that the independent reason for flight was not unduly prejudicial. It held hearings on the flight motions and the record reflects a rational process in its decision to admit the flight evidence and instruction. In determining that the State could introduce evidence of Quiroz’s flight, it made efforts to minimize the prejudicial effect by also ruling that the details of the other charges, proffered by Quiroz as his independent reason for flight, could “not be gone into.” Thus, during trial, the only references to the other charges were those made by Quiroz stating he fled because he was arrested for “more charges” after he posted bail for the sexual assault and exploitation charges. The record reflects the trial court’s careful rationale. The admission of the flight evidence and instruction was a well-considered and proper exercise of the trial court’s discretion.

The court doubts “whether Quiroz has really set forth an independent reason for fleeing,” ¶22, besides which the evidence of guilt was so “overwhelming” any error re: flight evidence would have been harmless, ¶28.

State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grds., 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.

Issue/Holding:

¶43      Sveum was convicted of aggravated stalking based on his 1996 stalking conviction. Proof of this particular aggravated stalking crime requires proof of a previous conviction for a violent crime or a stalking crime involving the same victim pursuant to Wis. Stat. § 940.32(3)(b). Sveum argues that the circuit court erred by admitting evidence of his prior stalking conviction after he had agreed to stipulate to the conviction. The legal basis for Sveum’s argument is difficult to discern, but he relies on State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), a case holding that a defendant’s prior drunk driving convictions should not have gone to the jury, even though proof of the prior convictions was necessary to prove the drunk driving charge at issue in that case. Whatever persuasive value Alexandermay have had in a stalking case was put to rest in State v. Warbelton, 2009 WI 6, ¶40, __ Wis. 2d __, 759 N.W.2d 557. In Warbelton, also a stalking case, the court expressly declined to apply Alexander and held thatAlexander applies only to drunk driving prosecutions. Warbelton, 2009 WI 6, ¶¶3, 46, 61. We are bound by Warbelton.

State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly

Issue/Holding:

¶11      The State submits that the computer-generated animation was intended as a demonstrative exhibit. The decision to admit or exclude demonstrative evidence is committed to the trial court’s discretion. ^[6] State v. Gribble, 2001 WI App 227, ¶55, 248 Wis. 2d 409, 636 N.W.2d 488. As long as the trial court demonstrates a reasonable basis for its determination, this court must defer to the trial court’s ruling. Id. In exercising its discretion, the trial court must determine whether the demonstrative evidence is relevant, Wis. Stat. §§ 904.01 and 904.02, and whether its probative value is substantially outweighed by the danger of unfair prejudice under Wis. Stat. § 904.03. ^[7] Gribble, 248 Wis. 2d 409, ¶55; State v. Peterson, 222 Wis. 2d 449, 454, 588 N.W.2d 84 (Ct. App. 1998). We conclude that the trial court erred in its determination permitting admissibility of the exhibit.¶12      The defendants did not have notice regarding the use of the computer-generated animation. While “surprise” is not a basis for exclusion under Wis. Stat. § 904.03, “testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues.” Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶12, 305 Wis. 2d 658, 741 N.W.2d 256,review denied, 2008 WI 19, 307 Wis. 2d 293, 746 N.W.2d 810 (Jan. 22, 2008) (No. 2006AP480) (citation omitted). For several reasons, the surprise in this case was coupled with the danger of prejudice and confusion.

Roy, which upheld admissibility of animation though adverse party not made aware of its intended use until 5^th day of 8-day trial, distinguished (largely because there, it was introduced via expert as part of effort to depict theory of case, and here it was via non-expert as part of seeming effort to recreate alleged crime step by step), ¶¶12-18:

¶22      Far from being an exhibit which merely illustrated a lay witness’s testimony or an expert’s opinion, this exhibit was nothing more than a collage of information—bits and pieces from each of the State’s witnesses when, mixed together, effectively represented the police officer’s own version of what occurred at the time and place in question. But the animator was not an eyewitness to the crime. His assessment about how the crime actually unfolded was just that, his collage, his assessment. By bringing this nonevidentiary perspective of the evidence to life by means of the computer-generated animation, and advising the jury that this was a representation of what happened, the jury was invited to view the collage as fact. A pasting of differing and sometimes conflicting facts from a mixture of witnesses, in an order that made most sense to the State, thus became the final, conclusive historical factual presentation of the crime. This is why it was unduly prejudicial. The animation superceded the sifting and winnowing that a jury normally does when fact witnesses describe the same event in varying and sometimes contradictory ways.

Inadmissibility, then, comes under the overarching 904.03 rubric. Yet, the court also seems to suggest independent bases for inadmissibility, namely lack of personal knowledge, ¶16, foundation¸ ¶17, and authentication, ¶18. If, indeed, each such defect may be a “stand-alone” ground for inadmissibility of computer-generated animation, then you don’t always need the precise concatenation of defects that occurred in this case. Regardless, the holding is narrow in the sense that on the facts it’s limited to a lay witness’s attempt to recreate testimony.