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Trial court’s evidentiary rulings weren’t erroneous

State v. Victoria Ward, 2015AP2638-CR, 3/21/17, District 1 (not recommended for publication); case activity (including briefs)

To no avail, Ward challenges two evidentiary rulings the circuit court made at her trial on charges of being party to the crimes of maintaining a drug house and possession of heroin with intent to deliver.

The first ruling involved a flubbed attempt to impeach one of the officers who went to Ward’s apartment as part of a “knock and talk.” At the preliminary hearing the officer testified he was with other officers inside Ward’s apartment building when they knocked on Ward’s door and that he heard the conversation between Ward and the lead officers; however, at trial he (and all the other officers) testified he was outside the apartment building. Instead of confronting the officer with his inconsistent prelim testimony, trial counsel tried asked him what he heard Ward say during the conversation with the officers at her door. The judge sustained the state’s hearsay objection, rejecting trial counsel’s argument that the testimony was admissible because it was offered for impeachment. (¶¶5-11).

The trial judge’s ruling was not an erroneous exercise of discretion. Trial counsel’s statement that the evidence was for impeachment wasn’t specific enough to articulate a legal basis for admissibility. (¶¶16-19). Ward argues on appeal that the testimony isn’t hearsay because it wasn’t offered for its truth, but that theory of admissibility wasn’t presented to the trial judge, so the judge can’t be faulted for failing to consider it. (¶20). Nor did the judge’s ruling violate due process under Myers v. State, 60 Wis. 2d 248, 263-64, 208 N.W.2d 311 (1973) (failing to allow defendant to use prior inconsistent statements to impeach a witness violated due process), because Ward didn’t try to use the witness’s own prior inconsistent testimony to impeach him, but instead tried to use another person’s hearsay statement. (¶¶21-24). Finally, Ward’s argument that trial counsel was ineffective for not simply impeaching the officer with his prelim testimony fails for lack of prejudice because the inconsistent statement was too minor in the context of all the other testimony. (¶¶31-40).

The second ruling involved testimony that, during a search of her apartment, Ward voluntarily disclosed that her uncle’s handgun was under a mattress. Ward argues the trial court failed to assess this evidence under § 904.03 and had it done so would have excluded it. Doing its own assessment in the absence of one by the trial court, the court of appeals holds the evidence was “highly” relevant and probative to the main issue at trial (whether Ward knew her uncle was stashing drugs in her apartment) and was not substantially outweighed by any unfair prejudicial effect. (¶¶4-5, 11, 25-30).

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