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Self-incrimination — requiring defendant to show physical characteristic to jury. Closing argument — state’s reference to defendant’s failure to call witnesses. Prior inconsistent statement — witness’s lack of recollection

State v. Ramon G. Gonzalez, 2012AP1818-CR, District 1, 7/23/13; court of appeals decision (not recommended for publication), petition for review granted, 1/19/14, affirmed, 2014 WI 124; case activity

Self-incrimination — requiring defendant to show physical characteristic to jury

Where inmate victim of battery by another prisoner identified one of his assailants as an inmate “with platinum teeth” (¶6), trial court did not violate Gonzalez’s right against self-incrimination by requiring him to show his platinum teeth to the jury:

¶19      The Fifth Amendment privilege does not protect a suspect from being compelled “to produce ‘real or physical evidence.’” Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990) (citation omitted). That is, the privilege “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber v. California, 384 U.S. 757, 764 (1966). Nor does the Fifth Amendment protect a defendant from being compelled to provide a blood sample to police. [United States v.Hubbell, 530 U.S. [27,] 35 [(2000)].

¶20      Here, the trial court’s request that Gonzalez reveal his teeth to the jury falls squarely within the category of “‘real or physical evidence’” that is not protected by the Fifth Amendment. See Muniz, 496 U.S. at 589 (citation omitted). Like a fingerprint, a photograph, or a blood sample, Gonzalez’s revelation of his platinum teeth to the jury was not testimonial but merely a showing of physical evidence.

Closing argument — state’s reference to defendant’s failure to call witnesses

Prosecutor’s reference during rebuttal closing argument to defendant’s ability to subpoena witnesses did not improperly shift burden of proof to defense. The prosecutor’s comment was a reasonable response to the defense closing argument–that there were many people in the jail pod at the time of the offense but the state had presented only two witnesses–and “virtually identical” to comments found to be unobjectionable in State v. Jaimes, 2006 WI App 93, ¶¶18-19, 25-26, 292 Wis. 2d 656, 715 N.W.2d 669. (¶¶23-29). Moreover, even if the prosecutor’s argument was improper, any error was harmless. (¶30).

Prior inconsistent statement — witness’s lack of recollection

The victim of the offense was “a reluctant witness” who said on the stand “I don’t want to do this this” and “I don’t want to be here.” (¶4). He also testified he had no specific recollection of Gonzalez being involved in attacking him. (Id.). Accordingly, a detective properly testified about the statement the victim made shortly after the attack because the victim’s lack of recollection of the prior statement made it admissible as a prior inconsistent statement under § 908.01(4)(a)1. and State v. Lenarchick, 74 Wis. 2d 425, 436, 247 N.W.2d 80 (1976) (when a witness denies recollection of a prior statement and the trial court has reason to doubt the good faith of the denial, the court may declare the lack of recollection to constitute an inconsistent statement and admit the prior statement into evidence). (¶¶34-35).

Gonzalez also complained that the postconviction court erroneously exercised its discretion when it adopted the state’s brief as its decision, and he asked for a remand to the postconviction court for a more thorough explanation of its decision. (¶12). The court of appeals agrees that “the postconviction court’s wholesale adoption of the State’s brief does not comport with recommended practice,” but it does not order remand because it reviews the issues raised on appeal de novo, making a fuller explanation from the postconviction court unnecessary. (¶¶13-14). However, the court once again tells circuit courts that “while we do not have explicit rules prohibiting the wholesale adoption of a party’s brief, the following admonition from the United States Court of Appeals for the Seventh Circuit is a good reminder on why circuit courts should avoid wholesale adoption of a party’s brief:

From time to time district judges extract portions of briefs and use them as the basis of opinions. We have disapproved this practice because it disguises the judge’s reasons and portrays the court as an advocate’s tool, even when the judge adds some words of his own….  Judicial adoption of an entire brief is worse. It withholds information about what arguments, in particular, the court found persuasive, and why it rejected contrary views. Unvarnished incorporation of a brief is a practice we hope to see no more.

(¶15, quoting State v. McDermott, 2012 WI App 14, ¶9 n.2, 339 Wis. 2d 316, 810 N.W.2d 237 (which in turn quotes DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir. 1990))).

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