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Appellate Briefing – Forfeiture of Argument; Harmless Error

State v. Joshua P. O’Keefe, 2010AP2898-CR, District 4, 10/13/11

court of appeals decision (1-judge, not for publication); for O’Keefe: Steven D. Grunder, SPD, Madison Appellate; case activity

¶7        O’Keefe contends that the circuit court erred in admitting the testimony of Bannach and Wanta in which they read to the jury the “Diagnosis” portion of the medical reports because O’Keefe was not afforded an opportunity to cross-examine the doctors who prepared the reports, and was thus denied his right to confrontation.  He concedes, however, that he did not raise this objection at trial.  Nor, in fact, did he raise any objection to that evidence, other than a hearsay objection to Bannach’s testimony, which the court sustained because the report was not yet in evidence.  The failure to object to the admissibility of evidence constitutes a forfeiture of the right on appellate review.  State v. Edwards, 2002 WI App 66, ¶9, 251 Wis. 2d 651, 642 N.W.2d 537.  O’Keefe does not argue that the admission of this evidence was plain error, an exception to the forfeiture rule.  See Wis. Stat. § 901.03(4).  He has thus forfeited his right to claim on appeal that the evidence was erroneously admitted.

The court separately holds that O’Keefe forfeits on appeal an ineffective-assistance argument – failure to object to the State’s closing argument mischaracterization of the law of self-defense – because, according to the court, his claim of prejudice is merely conclusory, ¶¶19-22 (“Without facts to support it, a conclusory allegation fails to demonstrate that a defendant was prejudiced by counsel’s deficiency.”). O’Keefe’s brief argues at some length (pp. 23-27) just how the challenged misstatement undermined the defense. Nor did the State assert forfeiture; to the contrary, the State’s brief conceded a closing argument misstatement (p. 9), arguing that its impact was minimal. The court reliance on forfeiture of the IAC argument thus puzzles.

Any error in admission into evidence testimony about O’Keefe’s character would be harmless, citing Martindale v. Ripp, 2001 WI 113, 246 Wis. 2d 67, 629 N.W.2d 698:

¶14      If an appellate court determines that the circuit court erroneously exercised its discretion, a new trial is not necessarily the result.  Id., ¶30.  Before a new trial may be ordered, an appellate court must “conduct a harmless error analysis to determine whether the error ‘affected the substantial rights of the party.’  If the error did not affect the substantial rights of the party, the error is considered harmless.”  Id. (quoted source omitted).

¶15      “For an error ‘to affect the substantial rights’ of a party, there must be a reasonable probability that the error contributed to the outcome of the action or proceeding at issue.”  Id., ¶32 (quoted source omitted).  A reasonable probability of a different outcome is a possibility sufficient to undermine confidence in the outcome.  Id.  An appellate court’s confidence in the outcome is not undermined where the erroneously admitted evidence was peripheral or the outcome was supported by evidence untainted by error.  See id.

¶16      Here, there was more than enough other substantial evidence for the  jury to have reached the verdict it did.

A recitation of the test that is ungenerous to the point of inaccuracy. For an error to be harmless, a court must be able to conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,  State v. Gordon, 2003 WI 69, ¶36, 262 Wis. 2d 380, 663 N.W.2d 765 (citation omitted).  More: the burden of establishing harmless error is on the State as beneficiary of the error.  See State v. Anderson, 2006 WI 77, ¶27, 291 Wis. 2d 673, 717 N.W.2d 74.

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