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Reference to defendant’s right against self-incrimination; newly discovered evidence — recantation

State v. Haven Pettigrew, 2012AP1860-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity

Reference to right against self-incrimination

Defense counsel revealed her theory of defense for the first time in her opening statement. During direct examination of the lead detective if that was the first time he had heard that theory. Defense counsel objected before the question was even finished, and the court sustained the objection, directed the jury to disregard the question, but denied the defense motion for a mistrial. (¶¶3-10). The court of appeals rejects Pettigrew’s claim the prosecutor’s partial question implicated his right to remain silence by implying he had an obligation to come forward with information:

¶24      …Pettigrew’s argument rests on the faulty premise that the State’s line of questioning called attention to Pettigrew’s right to remain silent. The partial question reflects the State’s attempt to discredit the defense theory that there were two separate fights. The question did not reference Pettigrew’s right to remain silent. The State was not able to complete the question as the trial court sustained defense counsel’s prompt objection. Therefore, there is no evidence that the jury was aware of the intended full question.  In the context of the entire three-day trial, during which the jury heard from multiple witnesses, nothing in this series of questions suggests that the jury “naturally and necessarily” reached the conclusion that the defense had an obligation to share its theory with the State. See [State v.Nielsen, [2001 WI App 192,] 247 Wis. 2d 466, ¶32[, 634 N.W.2d 325].  Moreover, Pettigrew did not exercise a right to remain silent; rather, he spoke with police after his arrest.

In addition, the trial court sustained defense counsel’s prompt objection and instructed the jury to disregard the partial question, and the jury is assumed to follow instructions. (¶25).

The fact the prosecutor made a comment about the newly disclosed defense theory to the detective, who was seated at counsel table during defense counsel’s opening, and that defense counsel noticed a juror looking intently at the state’s table, doesn’t help Pettigrew’s cause. There is no evidence in the record that the juror overheard anything the prosecutor and the detective said, so there is no basis to find the comment prejudiced Pettigrew or that defense counsel should have notified the trial judge about the remark as part of her mistrial motion. (¶¶15, 26-29).

Newly discovered evidence

After sentencing, a witness who testified at trial that Pettigrew admitted the crime to her wrote a recantation letter. The court rejects the argument this constituted newly discovered evidence. The recantation is not corroborated as required by State v. McCallum, 208 Wis. 2d 463, 473-74, 561 N.W.2d 707 (1997), and in any event, in light of the other evidence presented at trial, there is no reasonable probability a jury would reach a different result. (¶¶13, 17, 30-35).

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