Daubert – Court Error

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Zeferino A. Martinez

Case No.: 2015AP1458-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Daubert – Court Error

Zeferino Martinez appeals from a judgment convicting him of incest with a child and sexual assault of a child under sixteen. He contends the trial court erred when it admitted opinion evidence from a detective without proper Daubert qualification, excluded evidence of the victim’s prior sexual assault, admitted evidence of his telephone call to a third party without proper authentication and consent, and imposed two DNA surcharges. We reject Martinez’s contentions in regard to the evidentiary rulings but agree that the court erred in regard to the surcharges. Accordingly, we affirm in part and reverse in part and remand for the trial court to apply the DNA-surcharge statute that was in effect when Martinez committed his crimes. A fourteen-year-old close blood relative of Martinez’s alleged that he plied her with alcohol and she later woke up to find him having penis-to-vagina intercourse with her. Martinez at first denied involvement but later gave an inculpatory statement to police. A jury found him guilty. He appeals. We will supply other facts as necessary to address the issues on appeal. Martinez challenges three evidentiary rulings. He first contends the trial court erred by allowing City of Kenosha Detective David May to testify as an expert in violation of WIS. STAT. § 907.02 (2013-14), which incorporates the Daubert reliability test. We disagree.

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