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Machner hearing denied on claims for ineffective of assistance of trial counsel

State v. Lee Vang, 2017AP75-77-CR, District 1, 2/20/18,(not recommended for publication); case activity (including briefs)

Vang argued that his trial was ineffective in failing to object to (1) a police officer’s hearsay testimony about the victim’s statements to him; (2) his own testimony on direct about participating in an illegal street race for money; and (3) the State’s question about the local Fox News station mentioning him on a segment called “Wisconsin’s Most Wanted.”  The court of appeals affirmed the circuit court’s decision to deny Vang a Machner hearing on the first 2 claims for failure to show prejudice and on the third claim for failure to show deficient performance.

Vang was convicted of threatening police and his family members on one occasion and of battering and sexually assaulting his wife, J., on another occasion.  The court of appeals affirmed the denial of his IAC claims without a hearing for the following reasons:

The police officer’s hearsay testimony about what J reported to him.

¶28 We assume without deciding that the failure to object to the testimony constituted deficient performance, and we consider the question of whether the failure to object prejudiced Vang. We cannot conclude that “the decision reached would reasonably likely have been different” if trial counsel had succeeded in excluding this portion of Officer Anderson’s testimony. Strickland, 466 U.S. at 696. That is because J.’s extensive and detailed testimony was corroborated by non-hearsay, admissible evidence, namely, the essentially unrebutted testimony of Officer Vang about the events of December 27, 2013, the testimony of Officer Anderson about his observations of J.’s injuries and her demeanor on June 15, 2014, and the photographs entered into evidence. We note that in denying Vang’s postconviction motion, the trial court that had presided over Vang’s trial made a finding that J.’s testimony was “completely credible.” Where the testimony of a credible witness whose account is supported by independent eyewitness corroboration and physical evidence, any additional “bolstering,” even if erroneously admitted, does not constitute the kind of error that makes a different outcome reasonably probable. See State v. Sanchez, 201 Wis. 2d 219, 237, 548 N.W.2d 69 (1996) (finding error not to be prejudicial where the evidence against the defendant was “overwhelmingly probative” of his guilt).

Vang’s own street racing testimony.

¶30  . . .Vang was the one who volunteered the description as “illegal street racing.” All trial counsel did at that point was try to put the racing in the best possible light: Vang was successful at building and racing cars, won a $60,000 car that night and used the money from racing to support his family. Trial counsel elicited from Vang that they did the races in a way no one would get hurt—for example, that no people were ever around who could be injured and that it occurred near abandoned factories. However, the primary reason that failure to object to this testimony is not prejudicial is that, as the trial court noted, the racing testimony “was tangential at best.” In light of the testimony by eyewitnesses to Vang’s drunken and threatening behavior in the first incident and J.’s testimony and the related corroborating evidence, the failure to object to this description of this activity falls far short of the standard for prejudice.

Reference to “Wisconsin’s Most Wanted.”

¶32 . . . The State’s questioning related to Vang’s purported lack of knowledge of the arrest warrant despite being in court at the final pretrial and knowing the date of trial. On direct examination, Vang had portrayed himself as learning of the arrest warrant from his nephew and “immediately” going with family to turn himself in. The prosecutor’s questions were intended to rebut that self-serving description of what happened and elicited testimony that was relevant and not unduly prejudicial. An objection would not have been sustained. “It is not deficient performance for counsel not to make a pointless objection.” State v. Cameron, 2016 WI App 54, ¶27, 370 Wis. 2d 661, 885 N.W.2d 611. Neither was the failure to object prejudicial. Learning that Vang’s non-appearance was mentioned on a TV news segment was not more prejudicial than what the jury had already learned—that he had not appeared for his jury trial despite being present in court when the date was set.



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