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Counsel not ineffective in handling impeachment of defendant, defense witness with prior convictions

State v. Christopher J. McMahon, 2015AP2632-CR, District 3, 1/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)

McMahon’s trial attorney wasn’t ineffective for failing to shield McMahon and another defense witness from impeachment using a prior conviction.

McMahon testified in his own defense at his trial for misdemeanor theft. Before trial, the circuit court ruled, without objection from trial counsel, that McMahon could be impeached under § 906.09 with one 14-year-old prior conviction for criminal damage to property, which was caused when he tried to steal the property. When asked on direct if he’d ever been convicted of a crime, McMahon strayed from the § 906.09 script and said he’d been convicted of one crime “about 15 or 16 years ago.” The circuit court ruled this technically incorrect answer opened the door for the state to get into the details of the offense, including the fact it occurred as part of an attempted theft. (¶¶2-4, 9-10).

McMahon argues trial counsel should have objected to the use of the prior for impeachment in the first place, because it’s more than 10 years old, should have better prepared McMahon to properly answer the question and avoid door opening, and objected to the state’s questions about all the details of the offense and asked for a limiting instruction as to the use of the evidence. Not so, says the court of appeals:

  • The federal 10-year rule doesn’t apply under § 906.09, and given the theft aspect of the prior conviction counsel wasn’t deficient in recognizing that the trial court could admit the prior conviction as a proper exercise of the discretion and, therefore, to advise McMahon that the better course of action was for McMahon to avoid being impeached by not taking the stand. (¶12).
  • The circuit court found that the § 906.09 script was fully explained to McMahon by the court and trial counsel, and that it was basically McMahon’s own fault that the door to further details was opened. (¶13).
  • Trial counsel made a reasonable strategic decision to not object to the state’s questions about the details—namely, he thought it would be futile and would only highlight the nature of the conviction. (¶14). Likewise, it was reasonable not to ask for a limiting instruction on the grounds that would highlight the prior conviction. (¶15).

Trial counsel also was not ineffective for his handling of the improper impeachment of Rushman, another defense witness. Rushman was convicted of an ordinance violation, but on cross the state asked her if she’d been convicted of a crime and referred to the case by its criminal case number. Trial counsel didn’t object because he’d relied on the state’s (incorrect) information that she was convicted of a crime. (¶¶16-17). Even if trial counsel was deficient, this error didn’t prejudice McMahon. The court of appeals endorses the circuit judge’s finding that the jury wasn’t “greatly misled” by this line of questioning, apparently because Rushman said the conviction was for an ordinance violation, and in any event the admission likely had little effect on the outcome of the trial: “The State also questioned Rushman’s credibility by making the jury aware she was McMahon’s fiancée, depended upon him for housing, and was financially supported by McMahon at the present time.” (¶18).

Two additional claims—about evidence trial counsel should have presented and the state’s purported “burden shifting” questions and argument—are rejected, the first because the evidence added nothing of value to the case (¶¶19-21), the second because the questions and argument didn’t involve burden shifting but were proper ways to test the viability of McMahon’s defense (¶¶22-23).

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