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No prejudice in state’s failure to disclose witness; newly discovered evidence not material

State v. Jesse Steven Poehlman, 2016AP1074, 7/5/17, District 1 (not recommended for publication); case activity (including briefs)

The state charged Poehlman with various counts relating to two alleged incidents of sexual assault and battery of his wife–one in December 2014 and one in February 2015. The jury acquitted as to the earlier incident and convicted as to the latter. The court of appeals rejects his arguments that he must receive a new trial.

Poehlman first contends that his lawyer was ineffective for not objecting when the state called a witness it had not put on its witness list. That witness was a coworker of the alleged victim, who testified that she had seen her with a black eye, cuts and bruises “as early as December.” (¶24).

The court assumes the state could not have shown good cause for its failure to disclose and that the witness would have been stricken if Poehlman’s counsel had objected. See Wis. Stat. § 971.23(7m). It concludes that there is no Strickland prejudice because the jury’s verdict would have been the same. First, her testimony chiefly concerned the December incident, of which Poehlman was acquitted. See State v. Prineas, 2009 WI App 28, ¶35, 316 Wis. 2d 414, 766 N.W.2d 206. Second, the evidence regarding the February incident, in the court’s view, was so strong that any corroborating effect of the testimony was insignificant. (¶¶33-35).

Poehlman also argues that a witness who came forward after the trial would have provided crucial testimony supporting his account and rebutting the victim’s. In a highly fact-specific discussion, the court concludes that the new witness’s proposed testimony did neither. (¶¶42-45).

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