Griffin and his friend, Taylor, were charged with sexually assaulting T.H. Taylor pled and agreed to testify against Griffin, who went to trial and was found guilty. He filed a pro se appeal arguing that (1) the State failed to turn over Brady evidence (2) he received ineffective assistance of counsel, and (3) the circuit court erroneously admitted two letters, which were not authenticated. The court of appeals affirmed the conviction but Judge Dugan filed a concurrence on the third issue.
T.F. went to the police with a photo of Griffin that she obtained from the DOC’s sex offender registry. Griffin made various arguments that the State violated Brady v. Maryland, 373 U.S. 83 (1963) by not properly disclosing this photo. To prove a Brady violation, the evidence must be favorable to the accused either because it is exculpatory or impeaching. The State must have willfully or inadvertently suppressed the evidence. And the defendant must have suffered prejudice. The court of appeals rejected all of Griffin’s arguments because, among other things, the registry photo was not favorable to the defense. Opinion, ¶28.
Griffin also claimed ineffective assistance of counsel because his lawyer did not pursue weather data that could have impeached T.F. when she testified that upon arriving at his apartment she took off her boots due to the snow. The court of appeals dispensed with this claim for lack of prejudice. It called the evidence against Griffin “overwhelming.” In addition to Taylor, T.F., two police officers, and a sexual assault nurse examiner testified to facts supporting his conviction. Opinion, ¶33.
Lastly, the State offered into evidence two letters that Griffin supposedly slipped to Taylor in jail before Taylor entered a plea. The letters discuss what Griffin and Taylor should do to beat T.F.’s sexual assault charges. They were not signed or dated. Taylor did not testify that he was familiar with Griffin’s handwriting.
Judges Donald and White assumed (but did not decide) that the circuit court erroneously admitted the letters. Based on the overwhelming evidence noted above, they held that the error was harmless. Opinion, ¶¶38-41.
Judge Dugan filed a concurring opinion arguing that the letters were properly admitted. “One way to establish an evidentiary foundation is through the “[t]estimony of a witness with knowledge that a matter is what it is claimed to be.”
Sec. 909.015(1). Moreover, ‘authentication can be done through circumstantial
evidence.’ See State v. Giacomantonio, 2016 WI App 62, ¶20, 371 Wis. 2d 452,
885 N.W.2d 394.” Opinion, ¶46 .
In Dugan’s view, the letters were authenticated by Taylor’s testimony, by the content of the letters, and by the timing of when Griffin passed them to Taylor. Concurrence, ¶¶51-55.