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Abuse of Discretion – Admittance of Evidence

By: Derek Hawkins//July 27, 2020//

Abuse of Discretion – Admittance of Evidence

By: Derek Hawkins//July 27, 2020//

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mark J. Bucki

Case No.: 2018AP999-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Admittance of Evidence

Mark Bucki appeals a judgment of conviction, entered following a jury trial, for first-degree intentional homicide, strangulation, and hiding a corpse, all involving his estranged wife, Anita. Bucki argues he is entitled to a new trial because the circuit court erroneously exercised its discretion when it admitted two forms of canine scent evidence: (1) opinions from handlers of cadaver dogs that their dogs had alerted to the scent of human remains at various locations on Bucki’s property; and (2) opinions from handlers of trailing dogs that their dogs had detected in the area where Anita’s body was found the scent from a pair of tennis shoes taken from Bucki’s residence. Bucki argues the court should not have admitted this canine scent evidence because it was not corroborated by any physical evidence and because it was of low probative value and was highly prejudicial.

We conclude the circuit court did not erroneously exercise its discretion when it decided to admit the canine scent evidence. It is undisputed that this case involves expert testimony under WIS. STAT. § 907.02 (2017-18). Following a two-day evidentiary hearing on the admissibility of the canine scent evidence, the court conducted a lengthy analysis in which it identified and applied the proper factors under that statute. We reject Bucki’s request for a categorical rule that would condition the admissibility of relevant canine scent evidence on there being physical or forensic evidence corroborating the dog alerts. Rather, expert testimony regarding dog alerts, like all other expert testimony, may be admitted if the court concludes it satisfies the threshold reliability criteria in § 907.02 and is not otherwise subject to exclusion under WIS. STAT. § 904.03.

Bucki also appeals an order denying his postconviction motion seeking a new trial based on the alleged ineffective assistance of his trial counsel. In particular, Bucki argues his trial attorneys violated his Sixth Amendment right to counsel by failing to call his own canine scent expert at trial; failing to present evidence that Anita had on one occasion worn the tennis shoes used in the trailing dog search, thereby contaminating them; and failing to sufficiently challenge the State’s theory that an area of disturbed earth on Bucki’s property was an abandoned burial site for Anita’s body. We conclude Bucki’s trial attorneys did not perform deficiently, and we affirm the judgment and order.

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