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No error in joinder, denial of substitution

State v. Joe Bonds Turney, 2015AP1651-CR & 2015AP1652-CR, District 1, 8/30/16 (not recommended for publication); case activity (including briefs)

Turney claims the trial court erred in permitting joinder of two cases for trial and in denying his motion for substitution of judge following his arraignment. He also argues he is entitled to an evidentiary hearing on his ineffective assistance of counsel claim, which was based on trial counsel’s failure to object to a witness’s reference to his post-arrest silence. The court of appeals rejects his claims.

Turney’s first case was based on allegations that, in August 2013, he confronted a woman, pointed a gun a her, and shot a round into a wall. He was charged with being a felon in possession and endangering safety with a dangerous weapon. His second case was based on an alleged confrontation about three weeks later, in September 2013, with a different woman who was trying to reclaim her car from Turney; during that incident he also allegedly pulled out a gun and fired shots. He was again charged with felon in possession and endangering safety. The state later amended the information in the second case to add an armed robbery charge and another endangering safety charge. (¶¶3-7).

The cases were charged separately and assigned to different branches, but they were ultimately joined for trial. (¶¶8-10). The court of appeals finds no problem with the joinder under § 971.12 and Francis v. State, 86 Wis. 2d 554, 273 N.W.2d 310 (1979). It holds the cases have “common factors and overlapping evidence.” (¶23). Further, Turney fails to develop an argument that evidence of the crimes in one case would have been inadmissible in a separate trial of the other case (¶25) and makes only a conclusory argument that the joinder was prejudicial (¶26).

The court also rejects Turney’s claim that the circuit court should have honored his substitution request, which he filed after he was arraigned on the amended information in the second case. (¶10). Too late, says the court:

¶28     Several scenarios for substitution are explicitly addressed in the statute. First, for substitution of the originally assigned judge, clear time limits are set forth: “A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.” Wis. Stat. § 971.20(4) (emphasis added). Second, for substitution of a trial judge subsequently assigned, if the defendant has not used up his one substitution, he may file on the new judge but has varying time limits for doing so, based on how imminently his trial is set. The defendant must file the substitution request fifteen days from receipt of actual notice of the new judge assignment; if the trial is coming up within twenty days, he has up to forty-eight hours after actual notice; and if the trial is within forty-eight hours, the defendant must file his request before “commencement of the proceedings.” Sec. 971.20(5). There is no precise subsection addressing substitution following consolidation of cases, but we conclude that a plain reading of the statute shows that any substitution request on a newly assigned judge must be made before the new judge conducts an arraignment on new charges. Therefore, even assuming there is a right to substitution following consolidation, Turney was required to file his substitution request before arraignment before the new judge, which he failed to do here. See sec. 971.20(4), (5).

Finally, Turney’s ineffective claim fails because the reference to Turney’s post-arrest silence were merely “explanatory” and not intended to suggest a tacit admission of guilt; therefore, trial counsel’s failure to object was neither deficient nor prejudicial. (¶¶34-40).

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