02-1174-CR State v. Patterson

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Brian A. Patterson appeals from the judgment of conviction for Operating After Revocation (OAR) – Fifth or Subsequent Offense, following a jury trial, and from the order denying his motions for post-conviction relief. He argues that “the prosecutor’s violation of the trial court’s evidentiary rulings and his final argument dealing with suspected drug activity …

constitute plain error,” and that trial counsel rendered ineffective assistance by failing to move for a mistrial based on prosecutorial misconduct.

This court concludes that the prosecutor’s violations of the trial court’s evidentiary ruling constitute “plain error” under Wis. Stat. sec. 901.03(4). This court also concludes that, on appeal, the State, which has offered no response to Patterson’s plain-error argument, see State v. Peterson, 222 Wis. 2d 449, 459, 588 N.W.2d 84 (Ct. App. 1998), has failed to show that the error was harmless beyond a reasonable doubt, see State v. King, 205 Wis. 2d 81, 93, 555 N.W.2d 189 (Ct. App. 1996).

Accordingly, this court reverses and remands for a new trial.

This opinion will not be published.

Dist I, Milwaukee County, DiMotto, J., Schudson, J.

Attorneys:

For Appellant: Thomas K. Voss, Waukesha

For Respondent: Thomas J. McAdams, Milwaukee; Michael T. Mahoney, Milwaukee