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Ineffective assistance of counsel – failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist; failure to object to evidence of prior felony convictions

State v. Willie M. McDougle, 2013 WI App 43; case activity

Failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist

Trial counsel was not ineffective for failing to object on confrontation clause grounds to either the opinion testimony of the pathologist who did not conduct autopsy or the reports of pathologist who did conduct the autopsy because any failure to object was not prejudicial:

¶17      …[T]rial counsel’s decision not to object to Dr. Poulos’ testimony or the admission of Dr. Jentzen’s reports did not prejudice McDougle. Contrary to what McDougle argues, it is simply not true that without the testimony and reports at issue, “one could not conclude that the [victim’s] death was a gunshot homicide.” As noted, multiple witnesses testified that they saw McDougle fire several shots into the victim at close range. Indeed, one such witness testified that McDougle pointed the gun “straight into [the victim’s] face,” and shot him. (Some capitalization omitted.) Also, McDougle never challenged the victim’s cause of death. Rather, his defense at trial was that he was not the person who shot the gun. Additionally, we note that the autopsy report did not identify the victim’s assailant. In these circumstances, testimony and documentation confirming that the victim died of blood loss from gunshot wounds was unnecessary, its admission was harmless, and trial counsel’s failure to object did not subject McDougle to prejudice. See Strickland, 466 U.S. at 694.

Jantzen did the autopsy but had apparently moved on to the greener fields of academe by the time of McDougle’s trial (¶4 n.3), so Poulos read his reports, formed an opinion about cause of death (an opinion not identical to Jantzen’s in every detail), and conveyed his opinion to the jury. (¶5). Jentzen’s report was also admitted. (¶6). Trial counsel didn’t object. (¶16). The admission of autopsy reports without the supporting testimony of the person performing the autopsy, and the propriety of allowing one expert to act essentially as a surrogate for a non-testifying expert’s opinion, are issues roiling Confrontation Clause jurisprudence now, especially in the aftermath of the split opinions in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012) (on which, see here and here). Compare, for example, State v. Kennedy, No. 11-0223 (W. Va. Nov. 21, 2012) (testifying pathologist’s original observations and opinions, though based on review of autopsy report by another pathologist, admissible, but transmission of the other pathologist’s opinion and admission of his report violated Confrontation Clause), with People v. Leach, No. 111534 (Ill. Nov. 29, 2012) (autopsy report is not testimonial hearsay so its admission did not violate the Confrontation Clause). But instead of analyzing recent decisions, the court disposes of McDougle’s claim on lack-of-prejudice grounds, so the admissibility in Wisconsin of autopsy reports by someone other than the pathologist who prepared them will have to wait for another day.

Failure to object to evidence of prior felony convictions

In prosecution of charge of felon in possession of a firearm, trial counsel was not ineffective for failing to object to admission of evidence of two prior felony convictions when one would do the job; while allowing more than one conviction should not be needed in the usual case, it is a matter for the trial court’s discretion, and in any event there is no prejudice even if counsel was deficient:

¶23 …. As noted, evidence of McDougle’s guilt was overwhelming, and included the eyewitness testimony of individuals who saw McDougle shoot Ponder at a close range. That the jury knew that McDougle had been convicted of one felony as opposed to two in these circumstances—particularly given the fashion in which the felonies were introduced—did not, as McDougle argues, create “an atmosphere of aspersion and disrepute so as to convince the jury that [he] was a habitual lawbreaker who should be punished.” Consequently, McDougle has not shown prejudice, his ineffective assistance of counsel claim as to this issue fails, see Strickland, 466 U.S. at 694, …

While objecting to the admission of two prior convictions when one would suffice is obviously the better course, it is worth pointing out that trial counsel tried to avoid the admission of any prior conviction evidence by stipulating to McDougle’s status as a felon, but McDougle refused to agree to the stipulation. (¶¶7-8). The state then introduced the two prior convictions, though by reference to case number rather than an offense in an effort to mitigate prejudice. (¶¶9-10).

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