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Failure to present expert on interrogation tactics and defendant’s suggestibility held not prejudicial

State v. Dedric Earl Hamilton, Jr., 2018AP200-CR, 12/26/18, District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Hamilton of 1st-degree sexual assault of his 8-year old niece. On appeal, he argued that: (1) he was he entitled to a hearing on his postconviction motion in which he alleged, with the support of two experts, that his attorney provided ineffective assistance when she failed either to challenge the voluntariness of his Miranda waiver and subsequent confession or to present evidence calling its reliability into question at trial; and (2) he was entitled to a new trial in the interests of justice.

The court of appeals denied the ineffective assistance of counsel claim because, in its view, the defendant failed to prove prejudice.

¶3 . . . The evidence presented at trial included strong, consistent testimony from the victim—both on video and in person, subject to cross-examination—along with corroborating physical evidence of internal abrasions on the child’s genitals. The jury also heard testimony from three adults who heard the victim’s account within hours or days of the assault, and each account contained the same details: that Hamilton woke her while everyone was sleeping, asked for a hug, pulled down her pants, put his hand in her vagina in a way that hurt, and touched her vagina with his penis. There is no reasonable probability that the outcome of the trial would have been different if trial counsel had succeeded in suppressing Hamilton’s statement or had presented expert testimony on interrogation tactics in an effort to persuade jurors that it might be untrue and coerced. In short, we conclude that Hamilton was not deprived of a fair trial because “the error complained of did not contribute to the verdict obtained.” See State v. Jenkins, 2014 WI 59, ¶37, 355 Wis. 2d 180, 848 N.W.2d 786.

It rejected Hamilton’s new trial in the interests of justice claim for the same reason:

¶29 Hamilton argues that the real controversy was not fully tried because the jury did not hear “expert testimony challenging the reliability of the confession[.]” We disagree with Hamilton that “the jury was persuaded to convict based [solely] on [his] admission[.]” The victim testified and was subject to cross-examination, as were each of the witnesses who corroborated her account. There is therefore no basis for granting a new trial in the interest of justice.

 

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