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Counsel – Substitute; Jury Selection – Forfeiture of Issue; Other Acts Evidence; Sentencing

State v. James E. Emerson, 2011AP1028-CR, District 3, 6/26/12

court of appeals decision (not recommended for publication); case activity

Counsel – Substitute 

Given findings made by the lower court after an evidentiary hearing, the court of appeals upholds denial of counsel’s motion to withdraw: counsel was prepared for trial; “(t)his was a dilatory tactic by the defendant,” on the eve of trial after the charge had been pending for some time; and, communication between counsel and client remained “active[]” and “meaningful[],” ¶¶13-18. Standard of review recited, ¶14.

Jury Selection – Racial Composition of County – Forfeiture of Issue

Emerson is African American, the homicide victim white. At Emerson’s request, venue was changed from Marathon County because of pretrial publicity; Emerson didn’t object to the trial court determination that the jury panel would be from Iowa County. On appeal, Emerson argues that Iowa County has a too-small population of African Americans, therefore the trial court erred in selecting the panel – failure to raise such an objection forfeited the potential issue, ¶21. (Emerson apparently relies principally on State v. Mendoza, 80 Wis. 2d 122, 258 N.W.2d 260 (1977), which, as the court notes, dealt with something else: the defendant’s right to insist to be “tried in the vicinage of the offense.”)

Other Acts Evidence 

Other acts evidence, from three before to five months after the homicide, showing that Emerson approached females outside nightclubs and tried to convince them to accompany him to an isolated location to have sex, deemed admissible, ¶¶22-28.

Sentencing 

The court rejects Emerson’s complaint that sentencing statements by the victim’s relatives “were passiomate and heated”:

¶60      On appeal, Emerson does not explain why the court was incorrect in its determination that it did not rely on the victim’s family’s statements when fashioning its sentence.  He also does not point to anything in the record that shows the court relied on these statements when sentencing Emerson.  We conclude the circuit court properly denied Emerson’s claim for a new sentencing hearing.

The court provides no analysis, but perhaps the inaccurate-information test, State v. Tiepelman, 2006 WI 66, ¶2, 291 Wis. 2d 179, 717 N.W.2d 1 (“a defendant must establish that there was information before the sentencing court that was inaccurate”) applies.

Separately: Emerson raises numerous ineffective assistance of counsel arguments, ¶¶29-57, which are either too fact-specific, or resolved on the basis of no prejudice, to warrant any discussion.

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