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Appellate Procedure: Waived Objection to Jury Instruction; Inaccuracy in Witness’s Accurate Criminal Record: Harmless Error; Defendant’s Right Not to Testify: Retrospective Hearing – State Satisfied Burden of Proof

State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Appellate Procedure – Waiver – Jury Instructions 

Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance” between proposed and actually-given instructions doesn’t constitute waiver of objection to the variance, ¶11, citing § 805.13(4) (and stressing that variance must be “material,” else review falls within IAC context).

Ineffective Assistance – Prejudice 

Trial counsel’s failure to object to an instruction that, while authorizing jurors to take in to account their “own common sense” and “knowledge,” omitted reference to their “observations and experience,” wasn’t prejudicial. “Given what everyone knows from life and Lobermeier’s failure to tell us what in addition any of the jurors’ ‘experience’ would have brought to the table, he has not carried his burden to show Strickland prejudice, ¶13.”

Court alternatively, if briefly, analyzes issue under rubric of harmless error. Burden in that context is on the State, unlike IAC claim. “Wisconsin has two overlapping formulations of the harmless-error rule both of which put the burden on the State:  (1) “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” or, in an alternative phrasing (2) Has the State shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” ¶14, citing State v. Mayo, 2007 WI 78, ¶47, 301 Wis. 2d 642, 734 N.W.2d 115.”

Failure to Disclose / Ascertain Witness’s Accurate Criminal Record – Harmless Error 

The State’s inaccurate disclosure of witness Thornton’s criminal history – indicating two convictions when he actually had six – was harmless:

¶16 … Thus, not all of a witness’s convictions are admissible to attack his or her credibility.  Rather, the trial court has significant discretion to balance the various interests set out in the Rule.  Oddly, although Lobermeier argues that his rights were violated by the State’s non-compliance with Wis. Stat. § 971.23(1)(f), and his trial lawyer’s failure to discover Thornton’s four other convictions, Lobermeier does not tell us, and did not tell the trial court, what those other four convictions were.  This alone, either under a harmless-error analysis, see State v. Harris, 2008 WI 15, ¶41, 307 Wis. 2d 555, 577–578, 745 N.W.2d 397, 408 (violation of Wis. Stat. § 971.23 subject to a harmless-error analysis), or under a Strickland prejudice analysis, dooms his contention.  Simply put, the trial court did not have a chance to assess whether it would have permitted any of the four other convictions to be a basis for the jury’s evaluation of Thornton’s credibility.[5]  Moreover, as the trial court opined in its written decision denying Lobermeier’s request for postconviction relief, Thornton’s testimony that Lobermeier helped him do some work for Heinitz a week before the crimes cuts both ways ….

Defendant’s Right Not to Testify – Retrospective Hearing 

Defendant’s waiver of the right to testify at trial must be accompanied by a colloquy to ensure knowing and voluntary waiver, State v. Weed, 2003 WI 85, ¶40, 263 Wis. 2d 434, 666 N.W.2d 485, which the trial court failed to do here. However, this omission may be cured by a retrospective hearing at which the State proves waiver by clear and convincing evidence, ¶19, citing State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779 N.W.2d 718. The trial court here, on postconviction motion, held such a hearing and concluded “that Mr. Lobermeier understood two things.  First of all, that he understood that he had a choice.  In other words, he had the right to testify if he wanted. and [sic] secondly, the choice was up to him,” ¶21. The court of appeals “agree(s) with the trial court that the State has proven by clear and convincing evidence that Lobermeier personally decided to not testify and that he also understood that he could testify if he wished,” ¶22.

A procedural aside: at the retrospective hearing,” the questioning stopped because Lobermeier asserted his lawyer-client privilege.  The trial court agreed that the privilege applied, and neither Lobermeier nor his trial lawyer testified at the hearing,” ¶20 . Notwithstanding this potential deficit in the factual record, the court reaches the merits, ¶20 n. 9: “The parties do not discuss and we do not decide whether the trial court’s ruling on Lobermeier’s assertion of his attorney-client privilege was proper.” Keep in mind, though, that recognition of privilege in this context was at least arguably erroneous, State v. Flores, 170 Wis. 2d 272, 275, 278, 488 N.W.2d 116 (1992) (Flores II):

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.

This isn’t to say that Lobermeier should have argued that the record was insufficient to reach the merits, only that the litigant should be alert to the waiver principle articulated immediately above.

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