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No warrant, no affidavit, no worries. Failure to file suppression motion wasn’t ineffective assistance of counsel

State v. James Howard, 2013AP190-CR; 1/22/14; District 1; (not recommended for publication); case activity

Howard, a former correctional officer, was convicted of 2nd and 3rd degree sexual assault of an inmate at the Milwaukee County Criminal Justice Facility.  On appeal he argued that his trial counsel was ineffective for failing to: (1) move to suppress buccal swab evidence obtained without a warrant, (2) move to suppress penile swab evidence because the warrant for it was not supported by an affidavit, and (3) object to testimony of a sexual assault nurse who commented on the victim’s believability.

Suppression of buccal swab obtained without warrant.  There was no dispute that the police neglected to get the warrant for the buccal swab.  But the court of appeals said that slip up didn’t require suppression because, á la State v. Ward, 2011 WI App 151, 337 Wis. 2d 655, 807 N.W.2d 23,  “the State could have easily cured the matter by getting the necessary search warrant at any time before trial.”  After all, the police had ample evidence to show probable cause.  Slip op., ¶9.  Furthermore, the court held, the police’s oversight was an honest mistake.  Bottom line:  No deficient performance for failing to file a motion to suppress this evidence.

Suppression of penile swab obtained via unsupported warrant.  At the postconviction hearing on the ineffective assistance of counsel claim re this issue, the State could not produce a signed copy of the affidavit supporting the search warrant for the penal swab.  So it called multiple police officers to testify that the affidavit was in fact drafted, signed and submitted to the judge.  Indeed, the judge himself testified to his usual practice when issuing a warrant, though he could not recall this specific case.  According to the court of appeals, Howard suffered no prejudice from trial counsel’s failure to file a motion to suppress the unsupported warrant because the State was able to reconstruct all of the events relating to the affidavit.

Suppression of sexual assault nurse’s testimony.  When the sexual assault nurse who examined the victim testified at trial she commented on the believability of the victim’s story. Specifically, the DA asked the nurse:  “Is the absence of more injury a reason to disbelieve her story?”  The nurse responded “no” and explained why.  The defense said this violated State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984), which holds that one witness cannot give an opinion that another competent witness is telling the truth.  The court of appeals rejected the defense’s characterization of the nurse’s testimony.  “[S]he did not testify that M.R. was telling the truth about the ultimate issue in the case–that Howard sexually assaulted her.  Rather the nurse simply testified that M.R.’s physical condition was not inconsistent with M.R.s accusations.”  Slip op. ¶43.   According to the court of appeals, trial counsel’s failure to move to suppress this statement was neither deficient performance nor prejudicial because it would have been rejected as meritless.  Slip op. ¶ 42.

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