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Failure to impeach witness with mental health condition. Failure to request WIs. J.I.-Criminal 245 on accomplice testimony. Interrogation — Miranda custody; interrogator’s comments on truthfulness

State v. Deandre J. Bernard, 2012AP750-CR, District 4, 10/17/13; court of appeals decision (not recommended for publication); case activity

Trial counsel’s failure to impeach witness with mental health condition was not prejudicial

Trial counsel was not ineffective for failing to impeach the credibility of a witness who testified that Bernard told her “I think I killed a boy.” Bernard argued the witness suffers from a mental condition that affects her perceptions and recollections and that trial counsel should have requested access to the witness’s mental health records and used the records to impeach her. (¶17). Assuming that trial counsel could and should have done that, the court of appeals concludes trial counsel’s failure to do so was not prejudicial because “even without additional impeachment, [the witness’s] trial testimony revealed her to be a witness with serious credibility issues.” (¶¶18-23). In addition, while her testimony about Bernard’s statement, if credited, was incriminating, it was not the only evidence implicating Bernard as the shooter. (¶24).

Trial counsel’s failure to request accomplice instruction was not prejudicial

Bernard was charged as a party to a crime, and his main accomplice, Briggs, testified against him. Citing Bizzle v. State, 65 Wis. 2d 730, 734, 223 N.W.2d 577 (1974), Bernard argues Briggs’s testimony was not corroborated and therefore trial counsel should have requested Wis. J.I.-Criminal 245, which cautions a jury not to base a verdict on accomplice testimony alone. (¶¶30-31). The corroboration needed in “minimal,” State v. Smith, 170 Wis. 2d 701, 715, 490 N.W.2d 40 (Ct. App. 1992), but assuming Briggs’s testimony was uncorroborated, the accomplice instruction would have added little to what the jury heard from Briggs himself–in particular, that he thought he had a lot to gain in testifying against Barnard–along with trial counsel’s closing argument about Briggs’s motivation to lie and Wis. J.I.-Criminal 300, the standard witness credibility instruction. (¶¶33-34). Bernard also argued two other witnesses were accomplices; the court questions whether they were, but concludes their testimony was corroborated in any event. (¶35).

Defendant deemed not to be in custody despite his age, length of interrogation, and other factors

Bernard moved for suppression of his videotaped police interview, which lasted from about 6:00 p.m. to 11:30 p.m. Based on all the circumstances of the interview the circuit court concluded that the content of the tape was admissible up until 10:44 p.m., when police tactics and the degree of restraint changed, putting Bernard in custody for Miranda purposes. (¶¶36, 40). Barnard claims he was in custody for the entire interview based, among other factors, on his age (16), the length of the interview, the number of detectives involved, and their directives and monitoring of him during the interview. (¶41). The court of appeals finds theses factors do not tip the balance toward a finding of custody, finding this case to be like State v. Mosher, 221 Wis. 2d 203, 206-07, 211-12, 219, 584 N.W.2d 553 (Ct. App. 1998), which concluded a suspect was not in custody, and contrasting it with State v. Uhlenberg, 2013 WI App 59, ¶13, 348 Wis. 2d 44, 831 N.W.2d 799 (suspect was in custody when he was taken to the police department in handcuffs, escorted into the booking area in handcuffs, placed in a locked interview room with little information about the reasons for the interview, and had a police escort in and out of the locked room to get water or use the bathroom). (¶42).

Haseltine “vouching” rule inapplicable to comments during police interrogation

A detective’s comments during interrogation suggesting that Bernard was not being truthful did not violate the rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App.  1984) (one witness may not comment on the credibility of another witness). The court applies State v. Miller, 2012 WI App 68, ¶15, 341 Wis. 2d 737, 816 N.W.2d 331, which involved similar facts and held that the detective’s comments had “neither the purpose nor the effect” of attesting to the defendant’s credibility because they were not sworn testimony, but only an “unsworn ‘interrogation technique.'” While the trial court in Miller gave the jury a limiting instruction about the use of the detective’s statements and Bernard’s jury got no such instruction, the court rejects the argument that the lack of the instruction matters to the Miller holding:

¶49      …. In Miller, we twice summarized our conclusion and reasoning regarding the statements without referencing the instruction. See id., ¶11 (“We conclude that because the comments made by [the detective] on the video were made in the context of a pretrial police investigation and were not made as sworn testimony in court, the Haseltine rule was not violated.”); id., ¶16; (“In short, because [the detective]’s statements were not made as sworn testimony providing his opinion regarding the truth of Miller’s statements to the fact finder but were instead made in the context of a pretrial police investigation, the Haseltine rule was not violated and the trial court did not err by permitting the DVD to be played for the jury.”). And, we observe now that, regardless of any instruction, it would have been apparent to the jurors in Miller and, likewise, the jurors here that they were being shown the detectives’ statements and questions simply to provide context for the statements of the suspects.

For more on Miller see On Point’s post and commentary here.

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