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Challenges to admission of transcript testimony by unavailable witness, amendment of information, and sentence fail

State v. Larry L. Garner, 2016AP2201-CR, 4/17/18, District 1 (not recommended for publication); case activity (including briefs)

The State charged Garner and 3 other co-defendants with 2 counts of armed robbery use of force, PTAC, and felony murder, PTAC. The trial court ordered separate trials. A mistrial occurred due to juror misconduct, so the court held a second trial where the jury found Garner guilty on all 3 counts. On appeal the lead issue was whether the circuit court violated Garner’s confrontation rights by allowing the State to present his co-defendant’s testimony from the 1st trial at his 2nd trial. The answer, according to the court of appeals, is “no.” Garner’s challenges to the State’s amended information and to his sentence also failed.

No confrontation violation. Garner argued that the State failed to prove that Gholson-Wells, the co-defendant/witness, was in fact unavailable to testify at the 2nd trial. For starters, the State did not attempt to subpoena her. The court of appeals disagreed on this point and held that the use of process is not essential for determining a witness’s unavailability. Opinion ¶16 (quoting State v. Zellmer, 100 Wis. 2d 136, 148-149, 301 N.W.2d 209 (1981)). Even though the State should serve a witness with a subpoena when that is possible and when that step is a foreseeable potential condition to her presence at trial, this is not a constitutionally-required good-faith effort. State v. King, 2005 WI App 224, ¶11, 287 Wis. 2d 756, 706 N.W.2d 181. A subpoena wasn’t necessary in this case because:

¶22 The record establishes that Gholson-Wells was a compliant witness and was expected to appear voluntarily at the second trial. It was not until Gholson-Wells was facing possible revocation of her bail that she decided to flee. Based on the record, we hold that it was not unreasonable for the State not to issue a subpoena for Gholson-Wells to appear at trial.

The court of appeals further held that Gholson-Wells was “unavailable” because:

¶31 . . . as mentioned above, there was no reason to believe that Gholson-Wells would not appear voluntarily to testify. Furthermore, even though a bench warrant was issued for Gholson-Wells on April 3, 2014, the State was unable to locate her. Since the State could not find Gholson-Wells to execute the bench warrant, there is no probability that requiring the State to serve her with a subpoena would have made any difference.

¶32 As we noted earlier, the efforts that the State took to produce a witness for trial are evaluated for reasonableness. We hold that the State’s efforts to produce Gholson-Wells were reasonable under the circumstances. We further hold that, under the facts of this case, the State showed due diligence and made a good-faith effort to obtain Gholson-Wells’ presence during the trial and the trial court properly found that she was unavailable for Confrontation Clause purposes and WIS. STAT. § 908.04(1)(e).

The State’s amendment of the information. Garner argued that the State violated §971.29(1) by amending the original information to add a count of armed robbery without filing a formal motion and obtaining the circuit court’s consent.  The court of appeals held that no motion was necessary.

¶35 The statute merely states, “A[n] …information may be amended at any time prior to arraignment without leave of the court.” WIS. STAT. § 971.29(1). It can be inferred that after arraignment, leave of the court is required, but no procedure is prescribed for obtaining the consent. See State v. Conger, 2010 WI 56, ¶3, 325 Wis. 2d 664, 797 N.W.2d 341 (referring to the requirement of “judicial approval” when a charge is amended after arraignment). In Wisconsin, the trial court may allow the State to amend an information at any time in the absence of prejudice to the defendant. Flakes, 140 Wis. 2d at 418. There is no requirement in the statute that the State must file a formal motion prior to filing an amended information. What procedures the State must follow in seeking to amend the information is left to the discretion of the trial court.

The State amended the information before the first trial. Because that ended in a mistrial, the court of appeals held that Garner was not prejudiced by the amendment. Opinion ¶41. It also rejected Garner’s contention that the State amended the information to add a charge of doubtful merit in order to pressure him to plead contrary to State v. Hooper, 101 Wis. 2d 517, 538, 305 N.W.2d 110 (1981). It held that the victim’s statement to the policy (included in the complaint) and trial testimony supported the amendment.  Opinion ¶¶42-43.

Sentencing. Garner’s challenges to his sentence fared no better than his other arguments. At sentencing the trial court stated that Garner was the shooter. Garner contended that the testimony supporting that conclusion was untrustworthy and thus inaccurate. The court of appeals held that Garner simply disagreed with the trial court’s credibility assessment, which it would not overturn on appeal.

The State had offered Garner 10 years if he pled guilty. He chose a trial, lost, received 40 years, and argued that he was being punished for exercising his right to a trial. Again, the court of appeals disagreed. It held that Garner was simply not getting credit for things his co-defendants did–like cooperating, accepting responsibility and showing remorse. Opinion ¶53. Plus, all of the standard sentencing considerations supported the conclusion that he was “a total menace to society” and posed a “significant, serious high risk to the community.” Opinion, ¶55.

 

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