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Witness’s blurted comment during testimony did not warrant mistrial

State v. Kieuta Z, Perry, 2019AP270-CR, 5/12/20, District 1, (not recommended for publication); case activity (including briefs)

The State charged Perry with armed robbery and 1st degree recklessly endangering safety with use of a dangerous weapon both as a party to a crime, along with possession of a firearm by a felon. During cross-exam a witness blurted out “Didn’t [Perry] shoot somebody in the head before he shot me? That’s what I heard.” Defense counsel moved to strike and then later for a mistrial.

The trial court granted the motion to strike. But not the mistrial. Instead it agreed to instruct the jurors that they should disregard stricken testimony.

The jury returned a mixed verdict. It convicted Perry of armed robbery as party to a crime and of 1st degree recklessly endanger safety but not with use of a dangerous weapon. And it acquitted him of felon in possession.

Afterwards a juror wrote a letter to the trial court essentially saying that the jury had reached a compromise verdict, which was tainted by implicit bias. While the evidence of some counts was not strong the jury thought it was enough to convict a young, Black male who had been in trouble before guilty again. The letter also referenced the witness who blurted out the damning comment during cross-ex. Counsel moved for a second mistrial.

Perry appealed arguing that the trial court erred in denying the first motion for mistrial. He listed four factors the trial court failed to consider when ruling on the motion. The court of appeals held that the circuit court had actually considered the first factor, and Perry forfeited the remaining 3 by not raising them in the circuit court.  The court of appeals summarized Perry’s arguments as follows:

¶26 . . . Second, Perry contends that the trial court should have considered the “legal elements” of the charged crimes and, because the trial court did not, that “bias[ed] the jury’s ability to fairly consider the State’s case.” Third, Perry argues that, given the felon in possession of a firearm charge against Perry, the trial court failed to consider “direct evidence” that Perry was already a felon and, as a result, the jury was “primed” to attach more significance to I.G.’s statement. Fourth, Perry asserts that the trial court “should have also considered the evidentiary picture” and, because the trial court did not do so, the court did not recognize the weakness of the State’s case and the increased risk that I.G.’s statement caused the jury to find him guilty.

Perry insisted that he was not required “to have every single word written in an appellate brief to be first spoken aloud by trial counsel at the time of the motion.” Opinion, ¶29.  That didn’t fly with the court of appeals because the arguments didn’t appear in any form in the trial court. Id. (citing State v. Delgado, 2002 WI App 38, ¶12, 250 Wis. 2d 689, 641 N.W.2d 490)).

Perry argued that the juror letter showed the witness’s remark influenced the jury despite the trial court’s curative instruction. The court of appeals did not bite because §906.06(2) precludes a juror from impeaching a verdict.

Ultimately the court of appeals affirmed the denial of the mistrial because the witness made the statement just once on day 2 of a 3-day trial. The State didn’t elicit the testimony. The court gave a curative instruction, which the jury was presumed to have followed per State v. Deer, 125 Wis. 2d 357, 364, 372 N.W.2d 176 (Ct. App. 1985). And there ws sufficient evidence to support the verdict despite the statement.  Opinion, ¶¶40-41.

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