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Counsel wasn’t ineffective for failing to impeach witness with testimony from previous trial

State v. Robert Kentrell Gant, 2013AP1842-CR, District 1, 8/26/14 (not recommended for publication); case activity

Trial counsel’s failure to ask a witness at Gant’s second trial about her inconsistent testimony from Gant’s first trial wasn’t ineffective because the omission didn’t prejudice Gant. Further, the witness’s recantation of the testimony she gave at the second trial doesn’t satisfy the newly-discovered evidence test.

At Gant’s first homicide trial, which ended with a hung jury, Ashlee Bell testified Gant was not at the scene when the victim was shot. (¶¶2-6). At the second trial, which ended with a guilty verdict, Bell testified Gant was present at the time of the shooting, but she didn’t see him with a gun and didn’t know if he was the shooter. (¶¶7-8). Trial counsel wasn’t ineffective for failing to impeach Bell with her testimony from the first trial:

14      Here, the trial court found that Gant failed to sufficiently assert facts to show he had been prejudiced by his lawyer’s failure to impeach Bell with her earlier testimony because: (1) Bell had a relationship with Gant and at both trials evaded questions that would implicate him as the shooter; and (2) other witnesses’ testimony … clearly pointed to Gant as the shooter. These factors showed that not questioning Bell about her earlier testimony did not make the trial unreliable and did not affect the result.

And while Bell later recanted her testimony from the second trial and reasserted that Gant was not the shooter and was not at the scene at the time of the shooting (¶¶10), her recantation doesn’t meet the newly-discovered evidence test under State v. Ferguson, 2014 WI App 48, ¶25, 354 Wis. 2d 253, 847 N.W.2d 900, because it lacks circumstantial guarantees of trustworthiness:

20       The alleged recantation here does not meet the requirements because it is not internally consistent. The alleged recantation asserts that “her testimony in the first trial was true as to the date of the incident” and that “Gant was not the shooter.” Bell did not testify at the first trial that Gant was not the shooter. When asked “Did you see who did the shooting?” she answered “No.” At the second trial, she did not testify that Gant was the shooter; rather, she said she did not know if Gant was the shooter. At both trials, she denied telling police that Gant was the shooter. Further, Bell’s alleged recantation was not sworn under oath in an affidavit, but rather came as a representation through Gant’s investigator. …

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{ 1 comment… add one }
  • Robert R. Henak August 26, 2014, 9:09 pm

    The Court of appeals persists in applying the “reliable trial” standard for resulting prejudice that the U.S. Supreme Court rejected 14 years ago as contrary to the controlling “reasonable probability of a different result” standard mandated by Strickland. Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The Court also overlooks the Wisconsin Supreme Court’s recent reconfirmation that the courts are not to arrogate to themselves the assessment of witness credibility (at least when the evidence is not incredible as a matter of law) when assessing harmless error or resulting prejudice. State v. Jenkins. Overall, not one of the Court of Appeals’ better reasoned decisions and a prime candidate for federal habeas relief.

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