Branson was convicted of possession with intent to deliver methamphetamine. He argued that his lawyer was ineffective for failing to object to an officer’s testimony comparing his behavior to that of the passenger in his car where a bag of meth was found. The officer described the passenger as calm, helpful and willing to look him in the eye. In contrast, he described Branson as nervous and failing to make eye contact.
The court of appeals held that a witness may describe the behavior of a person as he communicates without attesting to the person’s truthfulness in violation of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). Opinion, ¶12. It added:
¶14 Moreover, in a prior decision, we affirmed the admissibility of testimony that was easily more problematic than the testimony against Branson. In State v. Davis, 199 Wis. 2d 513, 545 N.W.2d 244 (Ct. App. 1996), a police officer testified that two witnesses, who testified against the defendant, prior to trial “[g]ave very good statements,” and that they were “excellent witnesses.” Id. at 519. We concluded that this testimony “did not unfairly taint the fact-finding process.” Id. at 521. We think it obvious that the challenged testimony in Davis was less neutral than the testimony here.
Branson relied heavily on a United States v. Williams, 133 F.3d 1048 (7th Cir. 1998) where the 7th circuit court held that a federal agent’s testimony was inadmissible in part because he described the defendant as nervous, agitated and unwilling to make eye contact during his interrogation. The court of appeals acknowledged that it cited Williams in State v. Echols, 2013 WI App 58, 348 Wis. 2d 81, 831 N.W.2d 768. But here in Branson’s case it says Williams was bad law and it never formally adopted it.