On Point blog, page 19 of 31
Counsel wasn’t ineffective for failing to call witness at Franks hearing
State v. Lester C. Gilmore, 2013AP2186-CR, District 2, 7/30/14 (not recommended for publication); case activity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.
Exclusion of expert testimony and of prior, unsubstantiated accusations of child sexual assault affirmed
State v. Ricky H. Jones, 2013AP1731-CR, District 2, 7/30/14 (unpublished); case actvity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.
Trial counsel wasn’t ineffective for not moving to strike testimony of witness who invoked the privilege against self-incrimination
State v. Matthew D. Campbell, 2011AP1445-CR, District 4, 7/24/14 (not recommended for publication); case activity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.
SCOW deems trial counsel ineffective for failing to call eyewitness with credibilty problems; orders new trial
State v. Jimothy A. Jenkins, 2014 WI 59, 7/11/14, review of an per curiam court of appeals decision; majority opinion by C.J. Abrahamson; case activity
This is a very nice victory for the defense. It clarifies the “prejudice” showing required for a claim of ineffective assistance of trial counsel. And it assures lower courts that, where trial counsel fails to call an eyewitness whose credibility can be challenged, it is still quite possible to show the prejudice required for a new trial. After all, witness credibility is for the jury to decide.
Failure to present evidence of alternative sources for child’s sexual knowledge wasn’t ineffective
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.
Counsel was not ineffective for failing to object to comment on defendant’s silence or for telling jury defendant would testify
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.
Court of appeals affirms order for new trial based on ineffective assistance of trial counsel
State v. Donald Ray Michael, 2012AP2738-CR, District 1, 6/10/14 (not recommended for publication); case activity
Michael is entitled to a new trial on reckless injury and felon in possession of a firearm charges because trial counsel provided ineffective assistance at trial by failing to introduce evidence from the police department’s computer automated dispatch (CAD) report and failing to present testimony from an eyewitness to the incident.
Stalking statute was not unconstitutional as applied to defendant; letters on which stalking convictions were based constituted a “true threat”
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.
Trial counsel was not ineffective for failing to challenge photo array evidence or object to alleged prosecutorial misconduct
State v. Mario Emmanuel James, 2013AP309-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity
James, charged with armed robbery, alleged trial counsel was ineffective based on various alleged omissions, including the following:
- Failing to object to evidence that the victims of the robbery identified James from a photo array based on the claim that it was a suggestive identification procedure because the police told the victims before they viewed the array that they had found the victims’
No error in failure to give instructions on lesser included homicide charges where defendant’s trial testimony didn’t support them
State v. Tammy S. Cole, 2013AP947-CR, District 4, 2/27/14; court of appeals decision (not recommended for publication); case activity
The trial court did not err in declining to instruct on second-degree reckless homicide or homicide by negligent handling of a dangerous weapon, as Cole requested at her trial on one count of first degree intentional homicide for shooting Evans, her boyfriend:
¶14 The evidence viewed in the light most favorable to Cole does not support submission of these lesser-included offenses.