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Discovery Violation – Harmless Error; Defendant’s Right not to Testify – Evidentiary Hearing

State v. Daniel E. Krueger, 2011AP571-CR, District 3, 8/2/11 

court of appeals decision (1-judge, not for publication); for Krueger: Ana Lyn Babcock; case activity

Prosecutorial failure to disclose a police report containing his statements that “were incriminating and any reasonable prosecutor would have planned on using them at trial” violated Krueger’s right to discovery, ¶23, citing State v. DeLao, 2002 WI 49, ¶33, 252 Wis. 2d 289, 643 N.W.2d 480. However, the error was harmless (in part because one of the statements was struck, and a curative instruction given the jury; in part, because the State presented “strong evidence” of guilt, ¶¶29-30. DeLao distinguished (there, the violation “completely undermined the defendant’s theory of defense”). Test for harmless error, State v. Harris, 2008 WI 15, ¶45, 307 Wis. 2d 555, 745 N.W.2d 397, recited (“the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State’s case, and the overall strength of the State’s case”).

At a post-trial evidentiary hearing, pursuant to State v. Denson, 2011 WI 70, Krueger’s invocation of attorney-client privilege prevented trial counsel from testifying. The trial court then found Krueger’s own testimony not credible, drawing an inference that trial counsel’s testimony would have been unfavorable to the claim. The court of appeals affirms:

¶39      Here, the State attempted to meet its burden of proof by calling Krueger’s trial counsel.  See id., ¶70.  Krueger cannot hide behind the attorney-client privilege and prevent the State from meeting its postconviction burden.  See State v. Simpson, 200 Wis. 2d 798, 805, 548 N.W.2d 105 (Ct. App. 1996).  The circuit court made appropriate factual findings based on credibility determinations and inferences.  See In re Dejmal’s Estate, 95 Wis. 2d 141, 152, 289 N.W.2d 813 (1980) (credibility determinations are in the province of the trial court); see also State v. Ernst, 2005 WI 107, ¶36, 283 Wis. 2d 300, 699 N.W.2d 92 (at a collateral attack hearing, if defendant refuses to testify, court is free to draw reasonable inferences that state satisfied its burden).  Consequently, we affirm the circuit court’s denial of Krueger’s postconviction motion.

Undeniably, a defendant can’t use the A-C privilege to prevent the State from meeting its burden of proof, at least where the defendant is raising an IAC claim. In brief, an IAC claim operates as a waiver of the privilege. (A Denson claim is an IAC claim in all but name; most any Bangert-type claim is.) But this suggests the error in the trial court’s refusal to permit counsel’s testimony, with the remedy being remand for a full hearing. E.g., State v. Flores, 170 Wis. 2d 272, 277-78, 488 N.W.2d 176 (Ct. App 1992):

We agree with the parties that it was error to bar the testimony on grounds of the lawyer-client privilege. We hold that when a defendant charges that his or her attorney has been ineffective, the defendant’s lawyer-client privilege is waived to the extent that counsel must answer questions relevant to the charge of ineffective assistance. Section 905.03(4)(c), Stats., specifically states that there is no lawyer-client privilege “[a]s to a communication relevant to an issue of breach of duty by the lawyer to his [or her] client or by the client to his [or her] lawyer.” This section pertains here. See I ABA Standards for Criminal Justice, Standard 4-8.6 at 4-117 (2d ed. Supp. 1986) (“by raising the issue, the client draws the true facts into controversy and waives the privilege”). Because a full record was not made due to this error, and because this error prejudiced not only the defendant in attempting to meet his burden, but also the state in eliciting relevant testimony, a new hearing is appropriate.

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