On Point: b. Prejudice not found

State v. Robert Kentrell Gant, 2013AP1842-CR, District 1, 8/26/14 (not recommended for publication); case activity

Trial counsel’s failure to ask a witness at Gant’s second trial about her inconsistent testimony from Gant’s first trial wasn’t ineffective because the omission didn’t prejudice Gant. Further, the witness’s recantation of the testimony she gave at the second trial doesn’t satisfy the newly-discovered evidence test.

State v. Johnnie J., 2014AP144 & 2014AP145, District 1, 8/21/14 (1-judge; ineligible for publication); case activity: 2014AP144; 2014AP145

Assuming trial counsel should have objected to certain expert opinion evidence and hearsay evidence about Johnnie’s behavior, the failure to do so didn’t prejudice Johnnie because of the overwhelming evidence supporting the jury’s verdicts on one of the two grounds for terminating her parental rights.

State v. James R. Hunt, 2014 WI 102, 8/1/14, reversing an unpublished per curiam court of appeals decision; majority opinion by Justice Gableman; case activity

The court of appeals granted Hunt a new trial; the supreme court takes that new trial away. The supreme court’s decision does not develop any new law or address a novel issue of statewide concern—and that’s no surprise, for as described here, the state’s petition for review admitted the case didn’t meet the usual standards for review. Instead, the court applies well-developed rules governing harmless error and ineffective assistance of counsel to the fact-specific claims in this case. In the course of doing so, however, the court misunderstands, ignores, or inverts some fundamental tenets of appellate review and basic rules of evidence.

State v. John W. Kaczmarek, 2013AP1745-CR, District 4, 7/31/14 (1-judge; ineligible for publication); case activity

Trial counsel wasn’t ineffective for failing to discover before Kaczmarek’s bail jumping trial that the hearing notice mailed to the defendant had been returned, as there was other evidence he’d received notice of the hearing. Nor was counsel ineffective for failing to call certain witnesses, as one may have provided evidence that contradicted Kaczmarek and the other wouldn’t have provided much help to the defense. Finally, counsel wasn’t ineffective for failing to object to an arguably erroneous jury instruction.

State v. Lester C. Gilmore, 2013AP2186-CR, District 2, 7/30/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for failing to call a witness at a Franks v. Delaware, 438 U.S. 154 (1978), hearing because counsel was concerned the witness was unpredictable and might undermine his argument and because he was instead able to rely on the witness’s written statement to the police, which itself showed the discrepancy between the witness’s statement and the information in the search warrant affidavit.

State v. Ricky H. Jones, 2013AP1731-CR, District 2, 7/30/14 (unpublished); case actvity

Exclusion of expert testimony about defendant’s lack of propensity toward child sexual assault

In defending Jones against two counts of 1st-degree sexual assault of a child, his lawyer wanted to elicit expert testimony that Jones posed a low risk of committing a sexual offense–a strategy authorized by State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998).  Unfortunately, trial counsel failed to give the expert report to the State pursuant to its discovery demand, so the trial court excluded it under §971.23(7m)(a) and State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488.  Jones was convicted and appealed.

State v. Matthew D. Campbell, 2011AP1445-CR, District 4, 7/24/14 (not recommended for publication); case activity

After a victim admitted during cross-examination that she lied under oath during direct examination, the trial court advised the victim of her right against self-incrimination. (¶3-4). She invoked that right and was given immunity under §§ 972.08 and 972.085. (¶4). Cross-examination resumed, yielding additional admissions by the victim that she lied or gave inconsistent statements. (¶¶5-6). Under these circumstances, trial counsel was not ineffective for not moving to strike the victim’s direct examination testimony.

State v. Bryanntton A. Brown, 2013AP1332-CR, District 1, 6/24/14 (not recommended for publication); case activity

Trial counsel was not ineffective for failing to present certain evidence that the complainant in Brown’s child sexual assault prosecution may have obtained her sexual knowledge from watching TV and movies and talking to her older sister. Nor was trial counsel ineffective for not taking steps to mitigate the impact of a letter Brown purportedly wrote to Carson, a fellow jail inmate, in which Brown admitted the charges. Finally, the circuit court didn’t erroneously exercise its sentencing discretion.

State v. Russell S. Krancki, 2014 WI App 80; case activity

In the first Wisconsin case to address how Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013), affects the admission of evidence of a defendant’s silence, the court of appeals reads Salinas to apply to a narrow factual scenario not present in this case. The court goes on to assume that trial counsel should have objected to testimony about Krancki’s silence, but finds his failure to object wasn’t prejudicial. The court also concludes trial counsel wasn’t ineffective for saying in his opening statement that Krancki would testify or for failing to exclude references to the .02 blood alcohol limit.

State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity

The First Amendment did not preclude prosecuting Maier for stalking based on letters he sent because the letters constituted a “true threat” and thus were not protected speech.