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Right to Present Defense – Prosecutorial Intimidation of Witness; Comment on Guilt

State v. Jevell Williams, 2010AP1266-CR, District 1, 2/1/11

court of appeals decision (3-judge, not recommended for publication); for Williams: Bradley J. Wochowicz; case activity; Williams BiC; State Resp.; Reply

Right to Present Defense – Prosecutorial Intimidation of Witness

The prosecutor didn’t violate Williams’s right to present a defense by raising the possibility that his alibi witness had potentially violated a no-contact order by contacting a State’s witness on Williams’s behalf. State v. Koller, 87 Wis. 2d 253, 274 N.W.2d 651 (1979), deemed controlling.

¶9        The prosecutor here did exactly what Koller held was proper. The prosecutor did not speak directly with Bobo.  Rather, he told the defense lawyer and the trial court what Bobo had done and that her apparent violation of the no-contact order could subject her to liability if she testified.  The trial court then appointed a lawyer for Bobo to properly protect her rights.  After Bobo consulted with the lawyer, she exercised her Fifth Amendment right not to testify.  The prosecutor did nothing wrong.  Thus, the cases upon which Williams relies where the prosecutor did have ex parte contact with the witnesses are not in point.  See, e.g., State v. Fosse, 144 Wis. 2d 700, 702–703, 706–707, 424 N.W.2d 725, 726–727, 728–729 (Ct. App. 1988).

¶10      Williams argues, however, that “[w]ithout this testimony, [he] was clearly left without a defense” and “should be provided a new trial in the interest of justice.”  We disagree.  First, although a defendant has a right to present a defense and call witnesses to testify on the defendant’s behalf, that right is not absolute, and will give way when a witness has a privilege to not testify.  See Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”).  Thus, courts routinely recognize that a witness’s Fifth Amendment right will trump the defendant’s right to present a defense.  See United States v. Serrano, 406 F.3d 1208, 1215 (10th Cir. 2005) (collecting cases).  Second, as the trial court found in its order denying Williams’s motion for postconviction relief:  “It was not the prosecutor’s actions here, but rather Ms. Bobo’s actions in depriving the defendant of his planned alibi testimony.”

Comment on Guilt

A detective’s testimony that the police “determined that robbery did in fact occur” did not inform the jury it was his opinion Williams was guilty of the robbery but, rather, that further investigation was warranted, ¶14.

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