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Right to Present Defense – Hearsay Testimony; “Shiffra” Disclosure; Judicial Bias

State v. Bryan Peter Leather, 2010AP354-CR, District 1, 4/5/11

court of appeals decision (not recommended for publication); for Leather: Rex Anderegg; case activity

Leather argues he was entitled to call the prosecutor as a witness to testify about the complainant’s hearsay statements to her. The 6th amendment right to present a defense (confrontation and compulsory process) isn’t absolute and in particular doesn’t extend to irrelevant evidence. The offer of proof in support of admissibility shows that the complainant’s statements to the prosecutor weren’t inconsistent with her testimony, therefore were simply inadmissible hearsay, ¶¶7-22, citing State v. Sorenson, 152 Wis. 2d 471, 489, 449 N.W.2d 280 (Ct.App.1989), among other cases.

The court separately rejects a right-to-present-defense argument with respect to a claimed prior false allegation that Leather physically abused the complainant. The claim is based on an allegation made to child protective services by an unidentified individual, which CPS couldn’t substantiate. The court observes that “unsubstantiated” isn’t equivalent to “false,” beyond which Leather couldn’t show that the complainant herself made the allegation of abuse. In short: “The physical abuse allegations by an unknown party and denied by M.W. are irrelevant to the sexual assault allegation made by M.W.,” ¶¶23-26.

Judicial inspection of the complainant’s mental health records, pursuant to State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), reveals no information that has probative value or would be material to the defense, ¶¶27-38. (The issue is fact-specific, but the court discusses in some detail the applicable principles and caselaw.)

Leather’s challenge to the trial judge’s impartiality, based largely on his acknowledgement at sentencing that he had raised his voice throughout the proceedings in response to “the tactics of the defense,” is rejected by the court, ¶¶39-46. Leather doesn’t identify whether his complaint is grounded in statutory (§ 757.19(2)) or “ethical” prescriptions. As to the former, the only relevant subsection is (2)(g), which imposes a “purely subjective” test, State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 443 N.W.2d 662 (1989). The trial judge “specifically determined that he was impartial as to Leather and Leather’s counsel and that he could rule fairly.” As to a potential “ethical rule violation,” the court concludes that there was no objective indication of bias; rather, the judge’s “conduct simply indicates an attempt to impose reasonable decorum in the courtroom.”

¶46      Leather apparently objects to the opinions formed by Judge Conen based on events that occurred over the course of proceedings in this case and to the judge’s insistence on controlling decorum in his courtroom.  Neither of those factors is included in those that require disqualification under Wis. Stat. § 757.19(2)(a)-(f).  “‘Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.’”  State v. Rodriguez, 2006 WI App 163, ¶36, 295 Wis. 2d 801, 722 N.W.2d 136 (citing Liteky v. United States, 510 U.S. 540, 555 (1994)) (brackets omitted).  When, as here, the trial judge determines that he is impartial and can rule fairly in the matter or proceeding, our supreme court has explained that Wis. Stat. § 757.19(2)(g) does not require disqualification.  See American TV & Appliance, 151 Wis. 2d at 186.

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