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Trial counsel’s error in eliciting evidence precluded by limine order wasn’t prejudicial

State v. David D. Hartl, Jr., 2014AP2921-CR, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

In this OWI case, trial counsel moved to exclude reference to the 911 call about a possible drunk driver, which is what led to police to look for Hartl’s car and ultimately stop him. The state stipulated to excluding this evidence. But on cross-examination of the officer, trial counsel asked questions that led to the officer referring to the call. (¶¶4-5). Hartl argues his lawyer was ineffective for doing this. (¶¶12-14). While it would be “difficult to conclude” trial counsel wasn’t deficient (¶16), it is easy to conclude there was no prejudice.

¶18      …. The State observes the 911 call was only mentioned a single time, during defense counsel’s cross-examination of [Officer] Sokup, and it was not referenced by the State in either its closing argument or its rebuttal argument. In addition, the State argues, the trial evidence showed Hartl performed poorly on his field sobriety tests and displayed a “demeanor … indicative of being under the influence of an intoxicant, which was confirmed by the blood test.” Our independent review of the record supports this assessment. We observe the jury also heard Sokup testify to his observations of Hartl’s “thick, slurred speech and bloodshot eyes and [that Hartl] smelled of intoxicants.”

Hartl also raised a second issue: That the state shouldn’t have been allowed to elicit from the arresting officer that Hartl invoked his right to remain silent. The state concedes this was error, but argues it was harmless in the context of the whole trial. The court agrees. (¶¶3, 8-10).

Note that Hartl, litigating pro se, didn’t address harmlessness in his brief-in-chief and didn’t file a reply brief, so the state’s harmless error argument goes unrebutted. (¶11 & n.6).

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