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State v. Brandon J. Carter, 2010 WI App 37

court of appeals decision; for Carter: Melinda A. Swartz, SPD, Milwaukee Appellate; Resp. Br.; Reply Br.

Ex Parte Judicial Questioning, Pretrial Proceeding
Pretrial judicial questioning of a witness at return of a bench warrant worked deprivation of the defendant’s rights to counsel and presence at trial when the witness was subsequently impeached with statements she made during that exchange, ¶¶17-21. The error, though occurring but once and limited to impeachment, wasn’t harmless: “the testimony was important” given absence of physical evidence linking Carter to the crime (possession of a gun) and concomitant paramount importance of credibility determinations, ¶24. Moreover, the only percipient witness to link Carter to the gun “had a motive to lie, given that the police found him with the gun”; the State’s case wasn’t “as strong as it makes it out to be,” ¶¶28-29.

Etc. Harmless error inquiries are highly fact-specific by definition. This one tracks (¶23) the 6-factor test outlined in State v. Donald W. Jorgensen, 2008 WI 60, ¶23. A mystery remains: denial of counsel at a critical stage is generally thought to be not just error, but of “structural” magnitude; why is it appropriate to engage in harmless error analysis here? Partly because the supreme court said so albeit in a different context (ex parte communication with deliberating jury), State v. Lionel N. Anderson, 2006 WI 77, ¶74. The court of appeals discusses the problem in a footnote, ¶22 n. 5:

In Anderson, our supreme court recognized that “[o]rdinarily, the absence of counsel at a critical stage of the trial is not subject to harmless error analysis.” Id., 291 Wis. 2d 673, ¶74. However, the Anderson court went on to identify precedent establishing that there may be some circumstances involving a violation of the right to counsel when a harmless error analysis should be employed. See id., ¶75; see also United States v. Morrison, 449 U.S. 361, 365 (1981) (“[C]ertain violations of the right to counsel may be disregarded as harmless error.”). We agree with the parties that a harmless error analysis should be employed here. See Satterwhite v. Texas, 486 U.S. 249, 257-59 (1988) (utilizing harmless error test in review of a violation of Sixth Amendment right to counsel arising out of the erroneous admission of a doctor’s testimony which was based on a psychiatric examination conducted outside the presence of and without the advice of counsel); Moore v. Illinois, 434 U.S. 220, 222-23, 232 (1977) (remanding for harmless error determination following introduction of testimony identifying the accused from uncounseled line‑up conducted in violation of the Sixth Amendment).

Less here, perhaps, than meets the eye. Given that the issue (applicability of harmless error analysis) wasn’t joined or briefed, the precedential value of this footnote is doubtful. To be sure, Carter himself benefits: the case is now a fact-specific resolution which for that reason alone shouldn’t support discretionary review by the supreme court. Had the court of appeals derived a purely “legal” conclusion that the harmless error rule doesn’t apply, then the supreme court might be justified in taking review to determine more exactly the limits of Anderson. Point is, there’s no reason to accept the court’s conclusion in this case as the final word on whether harmless error applies to ex parte grilling of a witness. For an illustration of denial of counsel as structural error see State v. Larry D. Harris, 229 Wis.2d 832, 601 N.W.2d 682 (Ct. App. 1999) (judicial communication during voir dire, court stressing absolute right to fair trial by impartial jury).

Evidence – § 904.04 Misconduct – Prior Gun Possession
On a charge of felon in possession of firearm, a witness’s testimony of hearing “stories about him before with guns” was admissible, to explain the witness’s “state of mind,” i.e., why she believed the object she saw was a gun, ¶¶34-39.

Not clear, to be blunt, what the court is driving at: “Here, testimony related to Felicia’s state of mind was relevant to her perception that Carter had a gun during the incident,” ¶37.  That Felicia had heard “stories” might explain why she thought the object was a gun, but it doesn’t make it more likely that it was, in fact, a gun. Isn’t that what counts? “Heard stories”? And that is proof of what, exactly? When all is said and done, we’ve come a long way from the pronouncement in Thompson v. State, 83 Wis.2d 134, 144, 265 N.W.2d 467 (1978): “The cases dealing with other gun evidence are almost uniform in holding that it is error to introduce possession of a gun which was not involved in the crime.” Or maybe it’s still wrong to introduce actual proof of another gun, but now OK to introduce “stories” about it.