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Counsel wasn’t ineffective at TPR trial for failing to objecting to hearsay, “best interest of child” reference

State v. Kamille M., 2014AP2911, District 1, 6/26/15 (one-judge decision; ineligible for publication); case activity

Trial counsel wasn’t ineffective at Kamille M.’s TPR grounds trial for failing to object to hearsay and to the state’s veiled reference to the best interests of the child during closing arguments.

The hearsay was injected during the prosecutor’s questioning of Kamille, who was called as an adverse witness. (¶7). The prosecutor read descriptions of the insalubrious conditions in Kamille’s home from written reports prepared by people from the child welfare bureau and then asked Kamille if she “remembered” those conditions or if the description was accurate. (¶10). This is unlike the situation in State v. Dean, 67 Wis. 2d 513, 534-36, 227 N.W.2d 712, on which Kamille relies, because in Dean the prosecutor never proved the facts implied in his questions while here Kamille “either agreed wholly with the description or testified at length about how version of events differed.” (¶22). Between the fact that she either agreed with or disputed the descriptions and the fact that there was plenty of evidence to prove unfitness even without the descriptions, Kamille cannot show trial counsel’s failure to object was prejudicial. (¶¶21-23).

The veiled reference to the interests of the child came when the prosecutor argued in closing that this situation “isn’t fair” to the child. Kamille says this effective asked the jury to consider the child’s best interests, contrary to Door County DHFS v. Scott S., 230 Wis. 2d 460, 469, 602 N.W.2d 167 (Ct. App. 1999). The court of appeals says this argument takes the prosecutor’s remark out of context because the comment was made in relation to Kamille’s testimony that “it wasn’t fair” that the State did not offer more services to keep her on track. And in any event, when considered in the context of the entire trial, the comment was not prejudicial. (¶24).

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