Right to a public trial
The circuit court appropriately excluded a person from the courtroom under State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, after the prosecutor asserted the had threatened a state’s witness after her testimony. (¶9). While Small’s lawyer objected to the exclusion of the person on the grounds it violated Small’s right to a public trial and was based on a hearsay statement, counsel declined the trial court’s invitation to hold an evidentiary hearing as to whether the exclusion was justified. (¶10). The court of appeals finds no error:
¶11 The trial court handled the situation with aplomb and appropriate caution. First, preventing witness intimidation of both those who have already testified and those who have not yet testified ensures three of the four reasons underlying the right to a public trial that Ndina adopted: (a) fairness of the trial; (b) encouraging persons to testify; and (c) discouraging fear-based perjury. Smith’s trial was open to everyone but the man who, according to what we have in the Record, had implicitly threatened the witness. Further, the trial court’s order was no broader than necessary to protect those interests. See id., 2009 WI 21, ¶83, 315 Wis. 2d at 699, 761 N.W.2d at 634. Most significantly, however, the trial court offered to hold an evidentiary hearing that would either confirm or rebut the prosecutor’s assertion. Cf. id., 2009 WI 21, ¶82, 315 Wis. 2d at 699, 761 N.W.2d at 634 (objecting lawyer must suggest reasonable alternatives to excluding persons from a public trial).
Moreover, even if defense counsel was deficient for declining the evidentiary hearing, Small has not even alleged that the exclusion order deprived him of a fair trial, and thus has shown no prejudice from his lawyer’s decision. (¶12).
Lay testimony about events depicted on a surveillance video
Trial counsel was not ineffective for failing to object to a police officer’s testimony about his conclusions as to what Small appeared to be saying on a surveillance video of the armed robbery to which he was alleged to be a party. (¶13). The officer’s testimony was not “expert” opinion, but simply lay opinion that was rationally based on the officer’s perception and therefore admissible under § 907.01. (¶¶14-15). The jurors heard the audio and were thus able to use their own life experiences in assessing whether the officer’s opinion was accurate, in contrast to situations where expert opinion is needed because jurors have no independent life experiences on which to rely but must rather referee the battle of experts presented by the parties. (¶15). Finally, Small has not shown how he was prejudiced by the officer’s testimony: The jury heard the audio four times, and an eyewitness to the robbery testified to what he heard Small say. Nor did Small allege that a sophisticated technical analysis would reveal that any of the versions of what he said in the store were not essentially accurate. (¶16).
The court also rejects a claim that counsel was ineffective for failing to object to inadmissible hearsay. While the court agrees the evidence was inadmissible, the failure to object was not prejudicial as there is nothing in the record and no offer of proof in Small’s postconviction motion to support an inference that the evidence was inaccurate. (¶17).