On Point

State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decisionFor Harris: Ralph J. Sczygelskis

Issue/Holding: A document, identified to the jury as “recognizance of bond in a criminal case … by the defendant,” found in the same room as a controlled substance and meant to show his connection to the drug, was inadmissible:

¶82      Criminal History Generally Inadmissible. Ordinarily evidence of a defendant’s criminal history is not admissible because when such evidence is admitted, there can be an “overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts” and because of “the confusion of issues which might result from bringing in evidence of other crimes.” ^[38] Evidence of a defendant’s criminal history may serve as “an invitation to focus on an accused’s character” and to “magnif[y] the risk that jurors will punish the accused for being a bad person regardless of his or her guilt of the crime charged.” ^[39]

…

¶86      … We agree with the State, defense counsel, and the circuit court, concluding that the State improperly introduced evidence of the defendant’s criminal history when the State called the jury’s attention to a recognizance bond bearing the defendant’s name and when a State witness referred to the bond as “a court bail bond, some kind of court paperwork for [the defendant]” and then a “recognizance of bond in a criminal case . . . a posting of $1,000 by the defendant.”

The court finds the error to be harmless, ¶¶87-90.

State v. Timothy J. Normington, 2008 WI App 8, PFR filed 12/21/07
For Normington: Stephen J. Eisenberg

Issue: Whether images downloaded from the defendant’s computer, depicting objects inserted into women’s vaginas and into men’s and women’s anuses, were admissible on a charge of sexual assault of a mentally deficient victim involving an object inserted in his anus.

Holding:

¶19      We conclude the circuit court correctly decided that the greater latitude rule was available in cases where the other acts evidence is pornography, not prior sexual assaults, if the adult victim functions at the level of a child due to disabilities. We also conclude the court properly exercised its discretion in applying the rule in this case. ^[5] Thus, in analyzing the circuit court’s decision we will bear in mind that the application of the rule permits a more liberal admission of other crimes evidence, while also recognizing that the rule does not relieve a court of the duty to ensure that the other acts evidence is admissible under the proper legal standards. See id. at 52.…

¶21      … The first step requires only that the other acts evidence be offered for a permissible purpose. We conclude the circuit court reasonably concluded that the State satisfied this requirement by identifying the permissible purpose of motive and explaining that the State wanted to show that Normington was motivated by his sexual interest in inserting objects into body orifices when he inserted the toilet plunger into Bob’s anus.

¶22      We turn next to the second step, which requires an inquiry into the relevance of the pornography evidence. …

…

¶24      Because inserting a toilet plunger into another person’s anus is an unusual thing to do, knowing why a person might be motivated to do such a thing is highly significant to deciding whether Normington did it.  A reasonable inference from the evidence that Normington viewed pornography showing the insertion of objects into a person’s anus is that he found that practice sexually arousing.  A reasonable judge could conclude that this inference makes it more probable that Normington would insert an object into Bob’s anus than if there were no evidence he had a sexual interest in the insertion of objects into a person’s anus.

The court also concludes that the evidence wasn’t unfairly prejudicial: “having a sexual interest in the pornography is less, not more, disturbing than inserting a toilet plunger into a mentally deficient person’s anus,” ¶35; Normington was offered but declined a standard cautionary JI, ¶36; the State’s argumentation properly limited the inferential purposes, ¶37; and, Normington was acquitted on two of four counts, which “demonstrates that the jury did not decide to find Normington guilty simply because of the pornography he viewed,” ¶38.

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding:

¶26 As our supreme court explained in White, “[i]n applying the manifest injustice test on review, this court may consider the whole record since the issue is no longer whether the guilty plea should have been accepted, but rather whether there was an [erroneous exercise] of discretion in the trial court’s denial of the motion to withdraw.” Id. Later, in Thomas, our supreme court held that “[o]n a motion to withdraw, a court may look at the totality of the circumstances to determine whether a defendant has accepted the factual basis presented underlying the guilty plea…. Moreover, we have previously permitted a court reviewing the voluntariness requirement to … review the record of the postconviction hearing.” Id., 232 Wis. 2d 714, ¶23. Further, the record reviewed may include the record of the sentencing hearing and defense counsel’s statements concerning the factual basis. Id., ¶24.

State v. Eric T. Olson, 2008 WI App 171
For Olson: Byron C. Lichstein

Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line:

¶11      Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT. § 948.075, the defendant must have done an act to accomplish, execute, or carry out the defendant’s intent to have sexual contact with the individual with whom the defendant communicated. ^[6] More significant for purposes of this decision, the statute requires that the act be something other than “us[ing] a computerized communication system to communicate with the individual.” With this understanding of the statute in mind, we turn to address Olson’s conduct.

¶12      Olson argues that his use of the webcam to transmit live video of himself shirtless from the top of the chest up does not fit the “act” requirement because it was not an act other than “us[ing] a computerized communication system to communicate with” nora13queen. Wis. Stat. § 948.075(3). We agree.

…

¶16      We conclude that Olson’s use of his webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate with nora13queen. Consequently, we disagree with the circuit court and the State that Olson engaged in the type of act required under Wis. Stat. § 948.075(3) by transmitting that video. At the same time, we stress here and below in this opinion that it may be possible to use a communication function of a computer to engage in an “act” within the meaning of the statute.

State v. Dennis Charles Schulpius, 2006 WI App 263, distinguished, ¶¶22-23: Schulpius drove through a neighborhood looking for the supposed girl.

¶24      Olson next argues that the circuit court erred when it concluded that his previous sexual encounters with other women he met chatting on-line satisfied the “act” requirement. The State does not defend the circuit court’s decision on this ground. Rather, the State notes the circuit court’s conclusion and says only that “it is unclear whether that evidence is sufficient to constitute an act to ‘effect’ [Olson’s] intent to have sex with ‘nora13queen.’” We agree with Olson that the circuit court’s conclusion on this topic is in error.¶25      Olson’s admission of previous sexual encounters arising from internet chats might be relevant evidence. For example, it might, depending on other evidence, be used as admissible other acts evidence. But Olson’s admission does not involve an act to accomplish, execute, or carry out his intent in this case. Accordingly, those encounters could not constitute the required act with respect to nora13queen under Wis. Stat. § 948.075(3).

Because the given facts don’t establish a factual basis for the crime, Olson is entitled to withdraw his plea, ¶¶6, 26.

State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson

Issue: Whether “death scene” analysis from an FBI agent was admissible to establish cause of simultaneous death of two elderly individuals found dead in their home.

Holding:

¶25      The general field of crime scene analysis has been recognized as being a body of specialized knowledge. United State v. Meeks, 35 M.J. 64 (C.M.A. 1992). …¶¶26     Through education and experience, Safarik had the necessary knowledge to provide helpful answers the jury could use in answering the central question, whether the Recobs died simultaneously from natural causes or as the result of homicide. …

…

¶28      The jury was required to resolve a double homicide with no witnesses. The bodies were found in a decomposed and mummified state, raising questions as to the manner or cause of death. The jurors, faced with such a repellent job, would be assisted by a specialized analysis of the crime scene in light of other equivocal deaths and homicide cases. “A homicide and its crime scene, after all, are not matters likely to be within the knowledge of an average” juror. Meeks, 35 M.J. at 68-69. <> ¶29      One example of Safarik’s specialized analysis is his conclusion that there was “staging” at the death scene that was consistent with homicide. … It is beyond the everyday knowledge of an average juror to recognize evidence of “staging” or to understand the implication of such evidence. And, it is certainly beyond the ability of the average juror to correlate all nine factors Safarik considered in reaching his expert opinion. ^[6]

State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly

Issue: Whether the circuit court erroneously admitted an attorney’s expert opinion testimony that LaCount had engaged in a securities transaction.

Holding:

¶19 As noted previously, appellate courts use the deferential erroneous exercise of discretion standard when reviewing a circuit court’s decision to admit expert testimony. We are satisfied that the circuit court did not erroneously exercise its discretion in admitting Cohen’s testimony, because the circuit court’s decision rested on a reasonable basis and was in accordance with both accepted legal standards and the facts in the record. Cohen’s testimony was the type of expert testimony that was envisioned by Wis. Stat. § 907.02, because it encompassed specialized financial knowledge that would assist the jury in understanding the evidence presented at LaCount’s trial. Such testimony also could assist the jury in determining a fact in issue in the case, here, whether LaCount’s transaction with Wills involved a security.

The general rule is that “no witness may testify as an expert on issues of domestic law,”  State v. Derryle S. McDowell, 2003 WI App 168, ¶62 n. 20,  affirmed,  2004 WI 70. (The court of appeals, unlike the supreme court, acknowledged the general rule but declined to reach the merits under a harmless error analysis, 2007 WI App 116, ¶¶15-17.) How does this case square with the general rule? You decide:

¶22 We are further satisfied that Cohen did not impermissibly testify on a legal issue, contrary to LaCount’s claim that Cohen improperly testified on the definition of an investment contract. Cohen did testify that the basic features of an investment contract were someone “handing over some money,” while “expecting the other person or some other person besides [themselves] to do something to generate a return for [them] on that money.”¶23 However, even if Cohen’s statement that a security covered basically everything “you can’t figure out” was overly broad, the jurors were properly instructed that they were not bound by any expert’s opinion, that they were the sole judges of the facts, and that the court was the sole judge of the law. Jurors are presumed to have followed jury instructions. See State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992). Cohen’s testimony was generally consistent with the jury instructions that were given and, thus, with Wisconsin law. Under such circumstances, “[w]e are unable to perceive any prejudicial error.” State v. DiMaggio, 49 Wis. 2d 565, 580, 182 N.W.2d 466 (1971). In that case, we emphasized the therapeutic effect of the circuit court’s correct instructions. size=3> Id. at 579-80.

State v. Bryan James Krueger, 2008 WI App 162
For Krueger: Bradley J. Lochowicz

Issue/Holding:

¶15      Here, Mason was asked whether she had formed an opinion as to whether or not S.B. “was the product of any suggestibility or any coaching.” … Signs of coaching or suggestion could fall into the realm of knowledge that is outside that of a lay-person jury. ^[10]

¶16      However, in assessing that because S.B. was not highly sophisticated she would not have been able to maintain consistency throughout her interview “unless it was something that she experienced,” Mason testified that S.B. had to have experienced the alleged contact with Krueger. The testimony was tantamount to an opinion that the complainant had been assaulted—that she was telling the truth. As in Haseltine, this testimony simply went too far, and its effect was to usurp the role of the jury in determining credibility. See Haseltine, 120 Wis. 2d at 96; Romero, 147 Wis. 2d at 278; Tutlewski, 231 Wis. 2d at 390. ^[11]

¶17      We therefore agree with Krueger that counsel’s performance was deficient in failing to object to Mason’s testimony and that Krueger was prejudiced by counsel’s deficient performance. The appropriate measure of attorney performance is reasonableness, considering all the circumstances. See State v. Brooks, 124 Wis. 2d 349, 352, 369 N.W.2d 183 (Ct. App. 1985). While trial counsel testified that she had not objected because she viewed Mason’s testimony as admissible expert opinion, her view of the law was incorrect. It is well established that an expert witness cannot testify as to the credibility of another witness, and counsel’s failure to object when Mason did so was unreasonable. ^[12] Haseltine, 120 Wis. 2d at 96; Strickland, 466 U.S. at 687.

As Judge Brown points out in concurrence, ¶21, the holding is actually quite narrow:

I write separately to underscore that prosecutors will not be hamstrung by this opinion one iota. The opinion simply means that, while expert evidence regarding coaching or the lack of it is allowable, prosecutors must be careful in how they present it. The key word here is “objective.” The questions must be objectively tailored and designed to elicit objective answers. A good starting point for prosecutors would be footnote ten of the majority’s opinion. Certainly, prosecutors can tailor an objective, nonleading question about the child’s “ability to supply peripheral details of the alleged incident.” They can ask about the child’s use of language in describing the assault. They can ask about information “not appropriate for the developmental level of the child.” There are probably many more objective questions a prosecutor can ask that will get the prosecutor’s point across. What the prosecutor cannot do is cross the line by inviting the expert to give her or his opinion about whether the child was coached. In sum, be careful.

One small matter. The court takes pains to note that “Wisconsin law has not yet addressed the precise question of the admissibility of expert opinion testimony about whether the child’s testimony and behavior exhibit signs of coaching or suggestion,” ¶14. That being so, why didn’t the court simply say, “Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue,” State v. Jennifer Wery, 2007 WI App 169, ¶17, and wash its hands of the matter? Apparently because, in the final analysis, the issue wasn’t all that novel as the court itself ultimately acknowledged: “It is well established that an expert witness cannot testify as to the credibility of another witness, and counsel’s failure to object when Mason did so was unreasonable,” ¶17.