01-2303-CR State v. Carter

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Howard Carter appeals from a conviction after a jury trial for second-degree sexual assault and an order denying his motion for postconviction relief. Carter argues he is entitled to a new trial because: (1) he was denied his constitutional right to the effective assistance of counsel when his trial lawyer failed to remove a juror who is alleged to be subjectively biased; and (2) he was improperly barred from presenting a prior inconsistent statement that the accuser in this sexual assault prosecution “had a crush” on him. In the alternative, Carter argues that the judgment should be vacated and his sentence should be reduced to the statutory maximum because the State failed to properly charge and prove that he was subject to an enhanced penalty as a repeat offender.

We conclude that Carter is entitled to a new trial because the juror was subjectively biased and counsel was ineffective for failing to either challenge the juror for cause or use a peremptory challenge for the juror’s removal.

Therefore, we reverse the conviction and remand the matter for a new trial.

Not recommended for publication in the official reports.

Dist III, Brown County, McKay, J., Cane, C.J.

Attorneys:

For Appellant: Charles B. Vetzner, Madison

For Respondent: Edwin J. Hughes, Madison; John P. Zakowski, Green Bay