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Curative Instruction – Stricken Testimony

State v. Cortez Ramon Brooks, I, 2010AP2454-CR, District 1, 1/10/12

court of appeals decision (not recommended for publication); for Brooks: Ann T. Bowe; case activity

The trial court immediately struck non-responsive testimony of a jailhouse informant that Brooks had admitted to “multiple homicides.” Denial of a subsequent motion for mistrial based on this testimony is upheld as an appropriate exercise of discretion.

¶18      First, any prejudice from Burks’s answer was cured by the trial court immediately striking the answer upon Brooks’s motion.  See Haskins v. State, 97 Wis. 2d 408, 420, 294 N.W.2d 25 (1980) (“‘Any prejudicial effect which might have flowed from the statement was cured by the court’s immediate instruction to the jury to disregard the statement.’”) (citation omitted).  And later, the trial court instructed the jury to “[d]isregard all stricken testimony.”  We presume that jurors follow the trial court’s instructions.  State v. LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780.

¶19      Second, the trial court rationally concluded that Burks’s unresponsive, over-the-top testimony had not been prejudicial to Brooks, but had rather supported the defense’s theory ….

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