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Court of appeals: of curative instructions and smelly skunks

State v. Omar J. Smith, 2012AP863-CR, District 1, 9/10/13; (not recommended for publication); case activity

A jury convicted Smith of first-degree reckless homicide while armed as party to a crime and a host of other crimes.  Two issues are noteworthy.

Miranda-Edwards issue:  Police began questioning Smith while he was in custody.  He invoked his right to counsel, so they stopped. They re-initiated questioning (with fresh Miranda warnings) during which Smith said things like “I kind of want a lawyer present, but I don’t want it to look worse.”  The court of appeals held this to be an ambiguous or equivocal request for a lawyer, ergo the police were not required to stop questioning Smith, ergo the trial court appropriately denied the motion to suppress his confession.  Slip op., ¶17. See Davis v. United States, 512 U.S. 452, 459 (1994) and State v. Jennings, 2002 WI 44, ¶¶ 5, 36, 252 Wis. 2d 228, 647 N.W.2d 142.  See lots of On Point posts re same here.

Right to confrontation/ineffective assistance of counsel issue:  Smith did not act alone in the shooting.  A man named Treadwell was also involved.  At Smith’s trial, Treadwell testified that he had already pled guilty, that he was Smith’s friend, and that he had told police what happened on the day in question.  When asked if Smith was involved in the shooting, Treadwell answered:  “If you all get him you get him on your own . . . No.”  Then he stopped answering questions.  That certainly didn’t stop the State from asking–14 different times–questions such as: “Do you recall that . . . you identified photographs . . . of Omar Smith, who is the defendant in court here today, and you stated that that is Omar the person who asked you to come with him to do the shooting?” and “Do you recall telling Police Detectives . . . that you shot approximately four or five times and that Omar shot everything and then his gun locked back?” Treadwell sat mute.  So did defense counsel (at least until the next day when he moved for a mistrial).  The trial court denied the mistrial motion and, with defense counsel’s approval, gave a curative instruction ordering the jury to ignore all of the unanswered questions.

On appeal, Smith challenged trial counsel’s effectiveness arguing that limiting instructions do not “cure”  where a nontestifying codefendant’s confession is admitted.  See Bruton v. U.S., 391 U.S. 123 (1968) and Cruz v. New York, 481 U.S. 186 (1987). Unmoved, the court of appeals found no prejudice because: (1) this was not a joint trial so Treadwell was not a “co-defendant”; and (2) the trial court struck all of Treadwell’s nonresponsive testimony and ordered the jury not to consider it during deliberations.  Slip op., ¶23.

We all know that you can’t unring a bell–let alone 14 bells.  Dunn v. U.S., 307 F.2d 883, 886 (5th Cir. 1982) (“one ‘cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.'”)  After Treadwell’s testimony that he had already pled guilty to the crime at issue and that Smith was his friend, telling the jury to ignore the State’s numerous, persistent, suggestive questions and Treadwell’s non-responsiveness is like trying to deodorize skunk spray.  It’s pretty much impossible.  See “How to Remove Skunk Odor” here.





{ 1 comment… add one }
  • Robert R. Henak September 13, 2013, 9:46 am

    Number of problems with this decision, not the least of which is the Court of Appeals’ continued insistence on applying a legal standard for resulting prejudice on an ineffectiveness claim that the U.S. Supreme Court expressly rejected more than 13 years ago. According to the Court of Appeals here:

    [The applicable standard] is not, however, “an outcome-determinative test. In decisions following Strickland, the Supreme Court has reaffirmed that the touchstone of the prejudice component is ‘whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’” [citation omitted]

    However, the Supreme Court expressly held that squishy “unreliable or unfair” standard in Williams v. Taylor, 529 U.S. 362 (2000), to be not merely wrong, but contrary to controlling Supreme Court authority. Despite the fact that the Seventh Circuit has granted habeas relief in a number of Wisconsin cases based on state courts’ application of this same erroneous standard, the Wisconsin Court of Appeals persists in its misstatement of controlling law.

    The erroneous standard, of course, also contributes to the fact that, in my experience reading and handling criminal appeals over the past 26 years, distortion or misapplication of the resulting prejudice/harmless error standard has resulted in far more cases of injustice than all other types of errors in criminal cases combined.

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