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§ 904.03, Unfair Prejudice – Witness’s Reference to Knowing Defendant from Jail as Basis for Ability to Identify Him

State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding

Issue/Holding: Failure to object to a witness’s reference to having known the defendant from jail was not deficient performance, because this evidence was admissible anyway:

¶47      Furthermore, Cooks’ ineffective assistance of counsel claim is premised on a correct trial court ruling and cannot succeed. See Ziebart, 268 Wis. 2d 468, ¶14. The probative value of Marshall’s testimony was not outweighed by any danger of unfair jury prejudice. The theory of defense was misidentification. The nature of the prior contacts between Marshall and Cooks was relevant to show Marshall had a sound basis for making his identification of Cooks at the crime scene. Moreover, Cooks testified to having eight prior convictions. This would have reasonably suggested to the jury that Cooks probably had been incarcerated in the past and therefore detracts from any additional prejudice Marshall’s testimony provided.¶48      Cooks also suggests that Barth could have stipulated that Marshall knew him from prior contacts and therefore prevented the jury from knowing that he had been in prison. However, even assuming Barth was deficient for failing to so stipulate, Cooks has not established prejudice. Again, the jury could have easily inferred that Cooks had been in prison from his own testimony regarding his eight criminal convictions.


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