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Evidence / IAC: Comment on Refusal to Provide DNA; Instruction: Recording Policy Interrogation; Impeachment: Prior Convictions

State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply

Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance

Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel, a majority of the court finding both deficient performance and prejudice. The majority reasons as follows.

The parties agree that the State cannot exact a penalty for exercising fourth amendment rights, ¶¶20-21, but the question here more specifically is whether an arrestee does have the right to refuse to give a DNA sample. The State argues that the law on this point in Wisconsin hasn’t been resolved and, because counsel can’t be held deficient for failing to raise an unsettled proposition, State v. Maloney, 2005 WI 74, ¶23, Banks’ claim necessarily fails, ¶22. The majority rejects the assumption that the law on the point is unsettled, ¶25 n. 4:

… Wisconsin has no statute providing for the collection of DNA from arrestees. Nothing in our review of this emerging debate in other states suggests that the law in Wisconsin is unsettled. Accordingly, Banks’ attorney was not relieved of her duty to object to testimony and argument suggesting Banks’ invocation of a constitutional right was inculpatory. In Wisconsin, the warrantless collection of a DNA sample is authorized only after conviction.

The majority also analogizes to prosecutorial comment on a defendant’s refusal to consent to warrantless search, something non-controversially seen as a violation of due process, ¶24.

¶25     Accordingly, when the State introduced testimony regarding Banks’ refusal to voluntarily submit a DNA sample, Banks’ attorney should have challenged the evidence. When the State commented on Banks’ refusal during closing, suggesting his refusal demonstrated consciousness of guilt, Banks’ attorney should have objected. The test for deficient performance is an objective one that asks whether trial counsel’s performance was objectively reasonable under prevailing professional norms. Kimbrough, 246 Wis. 2d 648, ¶31. Here, it was not.[4]

As for prejudice: the case was close, so this improper evidence may have tilted the balance, and a new trial therefore warranted, ¶¶27-28.

The dissent narrowly disagrees, perceiving “that the law is in flux as to whether law enforcement may obtain a DNA sample of an arrestee without a warrant,” therefore counsel was under no obligation to argue an “unsettled” point of law, ¶50. But the dissent importantly cautions against a “myopic understanding” of this principle. The larger idea, which the dissent ringingly endorses, is that the right to refuse consent to a warrantless search would be eliminated if it could be used as evidence of guilt. It is just that in this particular context, the right to refuse consent is, in the dissent’s view, still up in the air, ¶51.

Instruction – Recording Policy Interrogation

A statement made by Banks while in custody was spontaneous, not the product of “interrogation,” therefore Banks wasn’t entitled to a §972.115(2)(a) instruction that the jury could consider the absence of recording of the interrogation and statement, ¶¶30-36.

Counsel – Effective Assistance

Counsel’s decision, made after consultation with Banks who assured her it wouldn’t lead to harm, to disclose to the State evidence impeaching a State’s witness was a product of reasonable strategy, even though the disclosure did lead to evidence damaging to Banks, ¶¶37-40.

Evidence – Impeachment – Prior Convictions

A witness is subject to prior-conviction impeachment if guilt has been found in the case even if the witness has not yet been sentenced, ¶41, citing, State v. Trudeau, 157 Wis. 2d 51, 54, 458 N.W.2d 383 (Ct. App. 1990).

Sufficiency of Evidence – Possession of Firearm by Felon

Inconsistencies in the testimony of the lone eyewitness to place a gun in Banks’ hand were for the jury to resolve, the evidence thereby sufficing to support conviction for possession of firearm by felon, ¶¶43-47.

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