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Directing TPR verdict was harmless error

State v. C.L.K., 2017AP1413 & 2017AP1414, District 1, 10/10/17 (one-judge decision; ineligible for publication); case activity

The circuit court directed a verdict in favor of the state during the grounds phase of the TPR proceedings against C.L.K. without allowing him the opportunity to present evidence. The court of appeals agrees this was error, but holds the error was harmless.

C.L.K. was the only witness the state called to prove its abandonment allegation, and he was examined by the state, the GAL, his lawyer, and the judge. (¶¶12-18). Based on C.L.K.’s testimony the judge granted the state’s motion for a directed verdict, concluding the evidence, even viewed favorably to C.L.K., established no good reason for his not having communicated with his children, their foster family, or the child welfare agency. (¶¶22-25).

On appeal the state concedes the circuit court shouldn’t have granted a directed verdict, and the court of appeals agrees. Under § 805.14(4) and State v. Magett, 2014 WI 67, ¶65, 355 Wis. 2d 617, 850 N.W.2d 42, a trial court must hear all the evidence before directing a verdict, and that didn’t happen here. (¶¶30-32). But the error was not structural, as directing a verdict isn’t on the (limited) list of recognized structural errors, State v. Pinno, 2014 Wi 74, ¶50, 356 Wis. 2d 106, 850 N.W.2d 207 (complete denial of the right to counsel, biased judge, excluding members of the defendant’s race from a grand jury, denial of the right to self-representation, denial of the right to a public trial, and defective reasonable doubt instructions) and isn’t analogous to an error in that list. (¶¶33-34). And denial of a criminal defendant’s right to testify can be harmless error, State v. Nelson, 2014 WI 70, 43, 355 Wis. 2d 722, 849 N.W.2d 317. (¶36). In any event, the error didn’t wholly deny C.L.K. the right to present a defense, as he was the only witness and was questioned twice by his own attorney and there’s no indication C.L.K. was prepared to call other witnesses in his defense. (¶35).

Applying Nelson’s harmless error factors (the importance of the defendant’s testimony to the defense case; the cumulative nature of the testimony; the presence or absence of evidence corroborating or contradicting the defendant on material points; the overall strength of the prosecution’s case, 355 Wis. 2d 722, ¶46), the court holds that directing a verdict against C.L.K. was harmless. C.L.K.’s sole defense to abandonment was the statement of a social worker that C.L.K. could not have the foster parents’ phone number, but he did nothing to seek out or arrange other contact (e.g., mail, visits, communication through the child welfare agency). Considering that “weak” defense against the overwhelming strength of the state’s case, the error in directing the verdict before the defense portion of grounds case doesn’t undermine the court of appeals’ confidence in the outcome of the proceedings. (¶¶38-52).

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