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Third trial not a charm

State v. Tyron James Powell, 2014AP1053-CR, District 1, 3/24/15 (not recommended for publication); click here for docket and briefs

After obtaining two mistrials, Powell probably thought he’d get lucky the third time around. Instead, he got a conviction followed by a court of appeals decision that rejected his arguments on impeachment evidence, on the admission of his prior convictions and on his trial lawyer’s ineffectiveness for failing to file a suppression motion.

Powell was charged with attempting to flee a police officer and carrying a concealed weapon. At the first trial, defense counsel argued that Powell suffered police brutality after his arrest and explained that Powell neglected to provide the supporting documents until the beginning of trial. The court ordered a mistrial. The State then obtained Powell’s medical records. At the second trial, Powell said nothing about police brutality. The jury hung, and the trial court declared a mistrial. Before the third trial the parties stipulated that, if asked about his prior convictions, Powell should answer that he had three. At the trial itself, Powell admitted he had three prior convictions and added “but no felonies.” He did not raise the issue of police brutality.

Impeachment evidence. On appeal, Powell argued that he had wanted to raise the issue of police brutality but couldn’t due to a pre-trial ruling: if Powell raised the issueat his third trial then the State could bring in his testimony from the second trial where he didn’t mention brutality thus suggesting that it was a recent fabrication.  In a daring display of circular reasoning (performed without the support of precedent) the court of appeals upheld the trial court’s ruling because “Powell’s silence on the issue at his second trial . . . raises the possibility that Powell fabricated the assault, thus impeaching his credibility.” Slip op. ¶20.

Prior convictions. As for his prior convictions, the State was entitled to clarify what those convictions were because Powell volunteered that they were not felonies. See Nicholas v. State, 49 Wis. 2d 683, 689, 183 N.W.2d 11 (1971) (when answers regarding prior convictions on direct examination are inaccurate or incomplete, the correct and complete facts may be brought out on cross-examination).  Slip op. ¶23.  Two of the prior convictions were for carrying a concealed weapon. The trial court allegedly cured the prejudicial effect of this information by instructing the jury that prior conviction are not proof that Powell was guilty of the pending charge of carrying a concealed weapon.

Ineffective assistance of counsel. Powell claimed that his trial counsel was ineffective for not moving to suppress the gun that he threw out of his car window as the police were chasing him. The court of appeals rejected the claim on the grounds that the police had reasonable suspicion to stop Powell to investigate whether he was carrying a concealed weapon (based on an anonymous tip and a security check) and probable cause to arrest him for fleeing.  Counsel can’t be ineffective for failing to pursue a meritless motion. State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994). Slip op. ¶27.

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