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Improperly admitted identification evidence doesn’t merit new trial

State v. Joshua Berrios, 2014AP971-CR, District 1, 3/10/15 (not recommended for publication); case activity (including briefs)

A witness named Trevino had been barred pre-trial from identifying Berrios as the person who shot him; but on cross-examination Trevino unexpectedly testified that Berrios was the shooter. This error does not merit a new trial in the interest of justice, nor does it support a claim of ineffective assistance of counsel.

Interest of justice claims prevail only in exceptional cases. State v. Bannister, 2007 WI 86, ¶42, 302 Wis. 2d 158, 734 N.W.2d 892. This isn’t one of them. Trevino’s testimony identifying Berrios as the shooter had numerous weaknesses that defense counsel highlighted during cross-examination. Defense counsel also explored Trevino’s motives for the identification—specifically, that Trevino was angry at Berrios for beating up one of his relatives. In addition, three witnesses besides Trevino saw Berrios with a shotgun on the day of the incident, and one of those witnesses saw him fire the gun and hit Trevino. Finally, other witnesses testified about physical evidence linking Berrios to the shooting. (¶¶2-8, 18-20). Consequently, Trevino’s testimony did not “so cloud[] a crucial issue that it may be fairly said that the real controversy was not fully tried.” State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996). For basically the same reasons, Berrios can’t prove either deficient performance by counsel or prejudice to his defense. (¶¶26-30).

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