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Trial counsel wasn’t ineffective for not moving to strike testimony of witness who invoked the privilege against self-incrimination

State v. Matthew D. Campbell, 2011AP1445-CR, District 4, 7/24/14 (not recommended for publication); case activity

After a victim admitted during cross-examination that she lied under oath during direct examination, the trial court advised the victim of her right against self-incrimination. (¶3-4). She invoked that right and was given immunity under §§ 972.08 and 972.085. (¶4). Cross-examination resumed, yielding additional admissions by the victim that she lied or gave inconsistent statements. (¶¶5-6). Under these circumstances, trial counsel was not ineffective for not moving to strike the victim’s direct examination testimony.

¶18    In general, the testimony of a witness who invokes the right against self-incrimination on cross-examination may be stricken in instances where the invocation of the right denies the defendant’s right to confrontation, … See State v. Barreau, 2002 WI App 198, ¶52, 257 Wis. 2d 203, 651 N.W.2d 12. Thus, we have stated that when a witness invokes the privilege against self-incrimination on cross examination,

courts must watch vigilantly to ensure that the invocation did not effectively emasculate the right of cross-examination itself. Therefore, when the privilege prevents a defendant from directly assailing the truth of the witness’ testimony, it may be necessary in some cases to prohibit that witness from testifying or to strike portions of the testimony if the witness has already testified.

Id. (quoting other sources).

¶19    However, the facts that gave rise to the Barreau court’s concern about denying a defendant’s right to cross-examine a witness are not present in this case. Here, there is no dispute that, because the victim was granted immunity, the victim’s invocation of her Fifth Amendment right did not limit Campbell’s right of cross-examination. … Campbell was able to conduct a full cross-examination of the victim, where trial counsel persistently attacked the victim’s credibility. Indeed, Campbell now concedes that trial counsel “did a very good job of challenging [the victim’s] credibility.” Thus, even if counsel moved to strike after the victim asserted her Fifth Amendment right not to incriminate herself, the court ultimately would have denied the motion because there was no basis in this case for striking the victim’s testimony.

Campbell’s challenges to the propriety of the grant of immunity are rejected as undeveloped (¶¶20-21) and his claim that trial counsel was ineffective for failing to request a cautionary instruction regarding the grant of immunity to the victim fails because the case on which it is based, State v. Nerison, 136 Wis. 2d 37, 46, 401 N.W.2d 1 (1987), involved co-conspirators who received benefits for their testimony about which the jury might not otherwise be aware, while the jury here was well aware of the grant of immunity given to the victim. (¶¶26-29).

The court also rejects claims that trial counsel failed to develop a defense based on Campbell’s use of Ambien, failed to introduce certain evidence, and failed to understand the elements of one of the offenses. There was no prejudice from failing to develop an Ambien defense or introducing the additional evidence (¶¶31-39) and the record shows trial counsel understood the elements (¶¶41-43).

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