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Admitting photo of victim and family at homicide trial is harmless error

State v. George A. Trinka, 2013AP539, District 2, 12/18/13; (not recommended for publication); case activity

A jury found Trinka guilty of 1st-dgree reckless homicide and 1st-degree recklessly endangering safety, both with use of a weapon.  The issue on appeal was whether the trial court erred in allowing the State to introduce into evidence a family photograph of the victim, his wife, and their children.  Trinka argued that the photo was irrelevant and prejudicial in that it improperly invoked the jury’s sympathy.  The court of appeals dodged the question of whether the trial court erred in admitting the photo.  It held instead that even if an error occurred it was harmless due to the overwhelming evidence (recounted within the decision) supporting the conviction. 

Under State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270, the State had the burden of proving beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. After applying Martin‘s list of “harmless error” factors,  the court of appeals held that the State had met its burden:

Based on our review, we conclude the State presented a strong case that Trinka was guilty of the two charged offenses. Had the jury found the State’s evidence lacking, it could have found Trinka guilty of lesser-included offenses, instead of the charged offenses. It did not. The challenged photo played an extremely minor, indeed almost insignificant, role in the trial. Considering the entire trial record in light of the Martin factors, we have no doubt “that the jury would have arrived at the same verdict” had the photo not been used. See id., ¶45.


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