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Confession – consideration of truthfulness of confession when deciding voluntariness

State v. Douglas H. Stream, Case No. 2011AP2051, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity

The circuit court properly denied the defendant’s Wis. Stat. § 974.06 postconviction motion, which claimed that his trial  lawyer was ineffective for not objecting to references to the truthfulness of his confession during a Goodchild hearing to determine voluntariness of the confession and that his postconviction lawyer was ineffective for failing to challenge his trial lawyer’s effectiveness. It is well settled that the truthfulness of a confession can play no role in determining whether the confession was voluntary, yet Stream was asked questions about the truthfulness of his confession during the suppression hearing by both the prosecutor and his own lawyer. (¶¶2-3, 10). The court concludes, however, that Stream has not shown that the trial court relied on the truthfulness of the confession in finding it was voluntary. Thus, even if his lawyers performed deficiently, Stream has not shown prejudice. (¶¶11-12).

Stream does not fare as well as his co-defendant, Agnello, whose trial lawyer did object to questions about the truthfulness of the confession. While the trial court overruled the objection, the supreme court held the trial court erred and so reversed and remanded the case for a new hearing at which the state would have to prove his confession was voluntary. State v. Agnello, 226 Wis. 2d 164, 593 N.W.2d 427 (1999). (¶¶4-5). An illustration, then, of how the same error can play out differently based on whether trial counsel objects or not. Agnello’s lawyer’s objection meant the state had to prove the trial court’s error was harmless, while Stream had the burden to prove both deficient performance and prejudice.

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