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.
Comment on Krancki’s silence
Krancki was charged with OWI. His defense was that a guy named Jason was driving. (¶7). In response to a jury question and again during rebuttal testimony, the arresting officer testified that Krancki never denied driving and never said someone else was driving. Trial counsel didn’t object to this testimony. (¶14). Krancki claims his lawyer was ineffective for failing to object because the testimony was an impermissible comment on Krancki’s right to remain silent, but the state argues the references to Krancki’s failure to deny driving his vehicle involved questioning in a noncustodial situation and, therefore, the references were permissible under the narrowest reading of the plurality decision in Salinas (discussed here). The court disagrees with the state:
¶16 At the outset we note that we are uncomfortable in employing Salinas, given it was a plurality decision. We believe Salinas stands for the proposition that the Fifth Amendment is not violated by the use of a criminal defendant’s silence in answer to a police question posed in a noncustodial interview when the defendant did not explicitly invoke his or her right to remain silent as the reason for refusing to answer the question. Salinas, 133 S. Ct. at 2180. In Salinas, the defendant voluntarily participated in a police interview, during which he did not respond to an officer’s question about whether his shotgun would match shells recovered at the scene of a murder. Id. at 2178. At his trial, prosecutors used his reaction to this question as evidence of his guilt, and he was convicted. Id. The United States Supreme Court affirmed the conviction, concluding in its plurality decision that the use of Salinas’s silence from this noncustodial interview did not violate his constitutional right, as he had not affirmatively asserted that he was relying on his Fifth Amendment right to silence as the reason he did not answer the question. Id.
¶17 In contrast to Salinas, Krancki was never asked whether he was or was not the driver, and therefore, Krancki had no opportunity to affirmatively assert his Fifth Amendment right to remain silent in response to that question. Furthermore, the question asked by the jury was not confined only to the officer’s noncustodial encounters with the defendant and, therefore, could have impermissibly implicated Krancki’s post-Miranda exercise of his right to remain silent. See State v. Sorenson, 143 Wis. 2d 226, 263, 421 N.W.2d 77 (1988). We find Salinas inapplicable to the fact situation before us.
Even assuming the officer’s testimony was improper, however, it was not prejudicial. “The witnesses at the scene testified that they did not see anyone else near or in Krancki’s vehicle, and Krancki’s own investigator testified that if anyone would have gotten out of the vehicle that he or she would have been seen. The officer testified that he saw Krancki’s vehicle as it pulled into the driveway and saw Krancki emerge from the driver’s door while holding the keys to the vehicle.” (¶18).
Promising Krancki’s testimony during opening statement
Before trial Krancki insisted to his lawyer that he would testify, though his lawyer doubted the story about Jason and thought there was evidence to challenge the officer’s identification of Krancki as the driver. (¶¶3, 7-8). So during opening statement defense counsel told the jury Krancki would take the stand and say Jason was driving. On the second day of trial, counsel convinced Krancki not to testify because counsel thought the jury wouldn’t believe him and their defense would be better made using the other evidence. (¶8). Krancki claims that trial counsel was ineffective for promising to present Krancki’s testimony because the unexplained failure to do so diminished the defense’s credibility, citing Barrow v. Uchtman, 398 F.3d 597, 607 (7th Cir. 2005), and United States ex rel. Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir. 2003).
This argument fails because trial counsel’s statement to the jury about Krancki’s testimony “was a direct result of a decision dictated by Krancki. ‘If a defendant selects a course of action, that defendant will not be heard later to allege error or defects precipitated by such action. Such an election constitutes waiver or abandonment of the right to complain.’ State v. Robles, 157 Wis. 2d 55, 60, 458 N.W.2d 818 (Ct. App. 1990) (citation omitted).” (¶11). In any event, the broken promise caused no prejudice: “The jury knew what Krancki’s defense was, with or without his testimony and with or without his trial counsel’s reference to Krancki’s potential testimony.” (¶12).
Stipulation or order to avoid references to .02 BAC limit
Trial counsel was not ineffective for failing to obtain a stipulation from the state that Krancki was subject to a .02 BAC limit or, absent a stipulation, an order from the court to exclude references to the .02 limit based on State v. Alexander, 214 Wis. 2d 628, 571 N.W.2. 662 (1997). Trial counsel asked the state to stipulate that Krancki’s BAC was over the permissible limit, but his request was rejected, and Alexander doesn’t provide authority for the order Krancki says trial counsel should have sought. (¶¶19-21).