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Effective Assistance – Discovery

State v. Eric Dominique Lesueur, 2011AP1550-CR, District 3, 6/26/12

court of appeals decision (not recommended for publication); case activity

By not asserting a discovery violation, for the State’s failure to provide a CD of a witness interview, trial counsel waived any potential issue, and review is limited to counsel’s effectiveness, ¶5. Lesueur can’t meet his burden of IAC-prejudice:

¶8        Lesueur did not establish Strickland prejudice.  As noted by the trial court, the defense lawyer “had an opportunity to play [the recording] that evening, he’s given an opportunity to call witnesses, essentially, if he wanted to … could have brought back in Mr. Nicholson, Sr. to ask more questions.  So he had enough time, he could have so used it to whatever extent he wanted to use it.”  Moreover, the trial court found that the salient aspects of the recorded interview were merely cumulative to the information in the police summary of the recorded interview, which had been turned over before trial and could have been used to impeach Nicholson.  The contents of the CD recording were largely inconsequential; thus, not having the recording before trial did not make a difference and does not make the trial unreliable.  Lesueur had a fair trial, and there is no reasonable likelihood of a different outcome on a retrial if the defense lawyer obtained the CD recording earlier.

Evidence – Impeachment – Prior Convictions 

The trial court properly exercised discretion in determining that a witness’s 1996 misdemeanor conviction for insurance fraud was too remote in time to support impeachment:

¶10      “Whether to admit prior conviction evidence for impeachment purposes under Rule 906.09 is a matter within the discretion of the trial court[,]” State v. Smith, 203 Wis. 2d 288, 295, 553 N.W.2d 824, 827 (Ct. App. 1996), and we will uphold discretionary decisions when the trial court applied the correct law to the pertinent facts and reached a reasonable determination, see State v. Gary M.B., 2004 WI 33, ¶19, 270 Wis. 2d 62, 76, 676 N.W.2d 475, 483.  In balancing relevance and prejudice, the trial court considers:  (1) lapse of time; (2) rehabilitation or pardon of the person convicted; (3) seriousness of the crime, (4) whether the prior conviction involved dishonesty, and (5) frequency of conviction.  Id., 2004 WI 33, ¶21, 270 Wis. 2d at 78–79, 676 N.W.2d at 483–484. 

¶11      Here, the trial court looked at Vaughn’s prior convictions:  “2003 battery, 2002 battery and a ’96 insurance fraud which was an unemployment compensation insurance case.”  It found:  “we do have a very old ’96 conviction….  And I think that here we have a lapse, and then we have two convictions in 2002, in 2003, and then nothing for a period of time.  I think that’s a relevant factor.  We don’t have a lifetime criminal here.”  The trial court noted that the old conviction “was a misdemeanor,” and concluded that “two is the more appropriate factor under all the considerations that we have.”

¶12      The trial court considered the appropriate factors and engaged in a balancing test to reach a reasonable determination.  The 1996 misdemeanor conviction was too old and too distant from the other convictions to be counted.  The trial court properly exercised its discretion.

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