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Admission of other-acts evidence wasn’t error; trial court properly denied mistrial motion

State v. Timothy A. Jago, 2013AP1084-CR, District 1, 2/4/14; court of appeals decision (not recommended for publication); case activity

Trial counsel was not ineffective for failing to move in limine to exclude other-acts evidence–specifically, evidence that Jago told the victim he has only pointed a gun at two people in his life, the victim and the man he killed in Illinois. (¶¶4, 16, 19). Jago’s trial lawyer reasonably relied on an agreement with the prosecutor to keep this statement out of evidence. (¶¶5, 14, 20). (Though the victim testified to the statement, it was not intentionally elicited by the prosecutor. (¶¶5-6).) In addition, the statement was not other-acts evidence, but an admissible statement of a party opponent, § 908.01(4)(b)1.; thus, a limine motion to exclude the statement as other acts evidence would have been denied. (¶21). Counsel can’t be deficient for failing to bring a motion that would have been denied, State v. Cummings, 199 Wis. 2d 721, 747 n.10, 546 N.W.2d 406, 416 n.10 (1996). Moreover, there was no prejudice, as the trial court struck the statement and instructed the jury not to consider it, and juries are presumed to follow instructions, State v. Johnston, 184 Wis. 2d 794, 822, 518 N.W.2d 759, 768 (1994)(¶¶6, 21). Finally, the trial court properly exercised its discretion in denying Jago’s mistrial motion based on the victim’s testimony about the statement. (¶¶6, 32-34).

Jago’s other claims of ineffective assistance are also rejected. Specifically, trial counsel was not ineffective for “opening the door” for the state to present rebuttal evidence of other threatening acts toward the victim and then failing to make multiple objections to the testimony during the state’s rebuttal case. (¶¶13, 16, 22, 26). The other-acts evidence was clearly admissible to rebut the defense Jago offered during his own testimony, so trial counsel was not deficient and Jago wasn’t prejudiced. (¶¶8-12, 23-25, 27-28). Finally, trial counsel was not ineffective for failing to use the victim’s medical condition to attack her credibility because trial counsel had considered, strategic reasons for doing so–e.g., it was inconsistent with the defense theory that the victim was manipulative and motivated to lie to gain a financial advantage in the pending divorce; that it might make her more sympathetic with the jury; and that medical experts trial counsel talked to considered the medical condition theory speculative. (¶¶13-14, 29-31).

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