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Change of venue based on pretrial publicity; denial of speedy trial; newly discovered evidence

State v. Michael T. O’Haver, 2011Ap2930-CR, District 2/4, 6/20/13; court of appeals decision (not recommended for publication); case activity

Change of venue

The circuit court did not erroneously exercise its discretion in denying O’Haver’s motion to change venue, applying State v. Albrecht, 184 Wis. 2d 287, 306, 516 N.W.2d 776 (Ct. App. 1994). There were a limited number of potentially objectionable pretrial media reports describing the homicide and distress of the victim’s family. The court holds that even if jurors remembered those reports, the information could easily be put aside in give the far more detailed trial evidence. (¶¶13-14). As to media reports that the state was seeking to introduce evidence of O’Haver’s history of domestic violence, the circuit court properly concluded that neither the case, nor the coverage of it, was so unusual compared to other domestic abuse homicides that made the case stand out or would make it difficult to seat impartial jurors. (¶¶16-17). The record of jury selection bore this out, as a few jurors remembered hearing about the case but could remember no details. (¶¶18-19).

Right to speedy trial

The 16-month delay between charging and trial, while presumptively prejudicial, did not deny O’Haver his right to speedy trial, applying State v. Urdahl, 2005 WI App 191, ¶¶11-12, 286 Wis. 2d 476, 704 N.W.2d 324. (¶¶21-29). The period of delay caused by the state’s interlocutory appeal of an order excluding other acts evidence does not weigh heavily against the state because there is no indication the appeal was taken to hamper O’Haver’s defense or that the delay prejudiced his defense. (¶¶25-26, 28).

Newly discovered evidence

An expert opinion regarding the cause of death obtained after trial was not newly discovered evidence, for two reasons. First, the new expert opinion was based on the same facts available prior to trial. A new expert opinion based on facts available prior to trial is generally not newly discovered evidence. State v. Fosnow, 2001 WI App 2, ¶26, 240 Wis. 2d 699, 624 N.W.2d 883 (WI App 2000). (¶32). Second, even if such expert testimony is newly discovered evidence, there is no reasonable probability that a new trial will produce a different result because the new expert testimony does not plainly contradict the opinion of the State’s expert. O’Haver’s new expert opined that she could not determine a cause of death, but neither could the State’s expert, and O’Haver’s trial counsel used the equivocal nature of the State’s expert’s opinion to argue that the State could really say only that a beating by O’Haver contributed to the victim’s death, just as other factors might have contributed to her death. (¶¶34-36). For the same reason, trial counsel was not ineffective for failing to discover and present the new expert witness’s testimony. (¶¶37-38).

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