On Point: 2. Prejudice

State v. Stephanie M. Przytarski, 2014AP1019-CR, District 1, 11/18/14 (1-judge decision; ineligible for publication); case activity

Przytarski can’t withdraw her plea even if her trial lawyer erroneously told her that she could appeal the trial court’s pretrial order that barred her from introducing certain evidence to defend against charges of interference with child custody.

State v. David M. Carlson, 2014 WI App 124; case activity

Note to trial courts: When ineffective assistance of counsel claims are based what trial counsel said to his client, hold an evidentiary hearing. Note to defense counsel: Data showing the sentences received by defendants charged with the same crimes as your client is about as useful as data showing a patient diagnosed with a lethal illness the survival rates of similarly-diagnosed patients.  Note to all: A single, inaccurate, hyperbolic remark during the course of a long sentencing explanation is harmless even if the trial court relied upon it.

State v. Lawrence L. Holmes, 2013AP2342-CR, District 4, 10/30/14 (not recommended for publication); case activity

Because Holmes can’t show that the court would have granted his motion to dismiss the misdemeanor charges in the case with prejudice, he hasn’t shown he was prejudiced by trial counsel’s advice to enter into a plea agreement because he was going to lose the motion to dismiss.

State v. Isaiah N. Triggs, 2014AP204-CR, District 1, 10/28/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for waiving a preliminary hearing in Triggs’s homicide prosecution or for failing to move to suppress Triggs’s confession. Further, the circuit court’s plea colloquy with Triggs was not defective and the circuit court didn’t erroneously exercise its sentencing discretion.

State v. Travanti D. Schmidt, 2014AP718-CR, District 4, 9/18/14 (one-judge opinion, ineligible for publication); case activity

And we do mean “spilled milk.” A jury convicted Schmidt, an inmate, of disoderly conduct for spilling milk on a prison guard. Defense counsel did not object to the admission of a videotape showing the incident from a side view, some distance away from Schmidt’s cell.  Without the video, there was only the testimony of the guard and Schmidt. The court of appeals held that exclusion of the video wouldn’t have made a difference; the jury would have believed the prison guard anyway.

State v. Deshun Latrell Bannister, 2013AP2679-CR, District 1, 9/3/14 (not recommended for publication); case activity

A claim that trial counsel was ineffective for failing to file a timely alibi notice founders on the lack of prejudice, as there’s nothing in the record showing what the alibi witness would have said had she been allowed to testify.

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.