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Excluding impeachment testimony from witness’s attorney was harmless

State v. Anthony E. Henderson, 2013AP2515, District 1, 10/7/14 (not recommended for publication); case activity

If the trial court erred in excluding a witness’s attorney from testifying to information that would have impeached the witness, that error was harmless.

Henderson was charged with sexually assaulting J.C. and R.S. Before trial, the attorney representing J.C. in a pending delinquency proceeding disclosed to the state that J.C. told him he hadn’t been assaulted, but had acted as a “look-out” while Henderson assaulted R.S. The state disclosed this to the defense, who sought to have the lawyer testify to impeach J.C. after J.C. testified at trial that he was assaulted. The trial court barred J.C.’s lawyer from testifying because J.C. had not waived the attorney-client privilege. (¶¶2-8).

If the trial court erred, it was harmless, because the jury acquitted Henderson of the charges relating to J.C. and because the impeachment testimony wouldn’t have affected—and would arguably have bolstered—the charges relating to R.S., for which Henderson was convicted. (¶¶9, 12-13). The court of appeals also rejects Henderson’s argument that the trial court’s exclusion of the lawyer’s testimony forced him to testify. The record shows Henderson advised the trial court that he wanted to testify before the court prohibited the lawyer’s testimony, and in any event Henderson’s case wouldn’t have been strengthened had he chosen not to testify, as the lawyer’s testimony would have bolstered the case with respect to the charges involving R.S. (¶14).

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