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Attorney can testify at Harrison hearing

The Wisconsin Court of Appeals held on July 21 that, when a defendant claims that his decision to testify was the result of the court’s admission of illegal evidence, his attorney and defendant can be compelled to testify at an evidentiary hearing.

On July 26, 2000, the State issued an arrest warrant for Christopher Anson and charged him with three counts of sexual contact with a child under the age of 16 in violation of sec. 948.02(2).

In early August, an officer from the Fontana, Wisconsin, police department contacted the Orange County California sheriff and asked for assistance in obtaining a statement from Anson. On Aug. 7, the Orange County investigator received a fax that contained an eight-page narrative, a copy of the criminal complaint against Anson, and a Xerox of a photograph of Anson and the victim.

The next day, the investigator and his partner went to Anson’s workplace, both to get a statement from him regarding an alleged sexual assault that had occurred in Wisconsin and ultimately to arrest him. Anson agreed to speak with the investigators.

Anson gave both inculpatory and exculpatory statements, after which he was placed under arrest.

Prior to trial, Anson moved to suppress the statement he gave to the California investigators, but the trial court denied the motion. An interlocutory appeal of the denial was rejected, and Anson testified at the trial.

Anson was convicted of one of the three counts, and appealed. The court of appeals reversed, holding that admission of the statement Anson made to the California investigators violated his Sixth Amendment right to counsel and should have been suppressed. State v. Anson, 2002 WI App 270, 258 Wis. 2d 433, 654 N.W.2d 48.

The court remanded the case to the trial level with these instructions: “We direct the trial court on remand to hear evidence and make findings of historical fact concerning whether Anson testified in order to overcome the impact of the incriminating statements he made to the investigators. The State bears the burden of showing that its use of the unlawfully obtained statements did not induce Anson’s testimony. Further, even if the trial court finds that Anson would have testified anyway, Harrison dictates that for the State to meet its burden of proving that Anson’s testimony was obtained by means sufficiently distinguishable from the underlying constitutional violation, it must dispel the natural inference that Anson would not have repeated the inculpatory statements when he took the stand. If the trial court finds that a link in fact exists between the State’s constitutional violation and Anson’s subsequent decision to take the stand and repeat the inculpatory statements, Anson has not waived his right against self-incrimination and is entitled to a new trial.”

On remand, Walworth County Circuit Court Judge James L. Carlson ruled that Anson would have testified even if the inadmissible statement had been suppressed, and that there were independent, distinguishable reasons for his decision to take the stand.

At the hearing, the State called one witness: Jeffrey Recknagel, its primary investigating officer, who testified that Anson did not have any criminal history and that Anson was calm and articulate on the taped California interview. He further testified as to the appearance and demeanor of several State’s witnesses during the trial.

Anson called one witness, his trial attorney Larry Steen, whose undisputed testimony was that Anson’s trial testimony was induced by the admission of Anson’s illegally obtained confession. Steen explained, “My recommendation to [Anson] was that he was going to have to testify at the jury trial because of the fact that the statement was going to be entered in as evidence…. On the day of his testimony, I was approached by … [Anson’s] stepfather, who told me that [Anson] did not want to testify…. I then found [Anson] either in the courtroom or the hall. I don’t remember. I asked [Anson] what was wrong. He said he did not want to testify. I told him he absolutely had to because of the damaging effect of that statement…. He told me he would follow [my] advice.”

What the court held

Case: State of Wisconsin v. Christopher Anson, No. 03-1444-CR.

Issue: When a defendant claims that his decision to testify was the result of an improperly admitted confession, can the State call the defendant and his attorney to testify?

Holding: Yes. As with claims involving ineffective assistance of counsel and an inadequate plea colloquy, the defendant and his attorney can be called to testify to shed light on the defendant’s understanding.

Counsel: Larry Steen, Elkhorn; Steven J. Watson, Lyndonville, VT, for appellant; Phillip A. Koss, Elkhorn; Christopher G. Wren, Madison, for respondent.

On cross-examination, Steen responded, “The statement was the sole reason [for testimony]. The statement was the key piece of evidence, except for what [the victim] said happened. That was the only evidence the state had.”

At the conclusion of the evidentiary hearing, the court ruled that there was an “independent distinguished basis” for Anson’s testimony other than the California statement. The court relied on the following findings: (1) In the taped statement, Anson admitted to one incident of touching but explained it by the concept of consent; (2) In addition to Anson’s statement, the State offered the testimony of the victim and other witnesses; (3) Anson had no criminal record; (4) Anson’s trial testimony was substantially the same as the California statement; and (5) Steen told Anson he had to take the stand.

Anson appealed again, and again, the court of appeals reversed, in a decision by Judge Harry G. Snyder.

Harrison v. U.S.

The court applied the two-part test of Harrison v. United States, 392 U.
S. 219 (1968), and State v. Middleton, 135 Wis.2d 297, 399 N.W.2d 917 (Ct. App.1986).

First, the court must determine whether the trial testimony was impelled by the prosecution’s wrongful use of the illegally obtained confession. If not, the court must then decide whether the incriminating statements would have been repeated in the trial testimony had the illegally obtained confession been suppressed.

The court stated, “We agree with the State that similar postconviction hearings provide an opportunity to look at the entire record when assessing whether error occurred,” but added, “We do not agree, however, that the evidentiary hearing court can stray from the record and consider intangible or speculative information from the trial.”

The court added, “We hold that at an evidentiary hearing under Harrison/ Middleton, the State may examine the defendant or defendant’s counsel regarding the defendant’s reason for testifying, and may use the entire record to meet its burden of showing that its use of an unlawfully obtained statement did not induce the defendant’s trial testimony.”


Applying the standard, the court concluded that the circuit court considered facts not in evidence at trial or the hearing, stating, “The court referenced its observations of family distress in the courtroom during the trial, as well as trial witness credibility to make its findings. These were not appropriate considerations. By straying into intangible aspects of the trial, the evidentiary hearing court violated Anson’s Sixth Amendment right to confront witnesses against him.”

The court quoted the lower court as follows: “Quite honestly, [Anson testified] also perhaps to have some kind of compatibility with what he had told his wife before.

That might not have been known to the state, but that might have been something he had to face the family to get up there and take the stand. And I saw the whole family scenario here as a trial judge. So I know there was a tremendous division, and reason for [Anson] to take the stand and deny or explain it.”

Calling this observation speculation, the court found the lower court’s decision it an erroneous exercise of discretion, for several reasons.

“First, the court mischaracterized the inquiry. The State’s burden was to prove that its use of illegal evidence did not induce Anson to testify. The court’s determination that Anson ‘really had no other reason not to testify’ reflects the wrong legal standard. The Harrison Court acknowledged that there may be many reasons for a person to take the stand. Had Anson’s inadmissible statement been properly suppressed, he had a compelling and constitutionally sound reason not to testify: the Fifth Amendment protection against self-incrimination. More importantly, he would have had the opportunity to weigh that protection against the benefits of testifying to refute legally introduced evidence (cites omitted).”

Second, the court found that the circuit court “speculated on Anson’s motive for testifying without any facts to support the inferences drawn and without an opportunity for Anson to cross-examine those whose behavior apparently influenced the court.”

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Finally, the court found that the circuit court did not address the second part of the Harrison test: whether Anson would have repeated the incriminating statements on the stand had the California statement been properly suppressed.

The court stated, “Even if Anson would have chosen to testify, it is unlikely that he would have said that the victim ‘may have some grounds for the allegation,’ or referenced a three-minute time frame for the touching episode, or admitted lying to his wife about the incident. The State has not, therefore, defeated the ‘natural inference’ that ‘no testimonial admission so damaging would have been made if the prosecutor had not already spread the petitioner’s confessions before the jury.’”

The court also noted that the only direct evidence of Anson’s inducement to testify came from his attorney, and that no evidence rebutted that testimony.

Accordingly, the court again reversed, holding, “Our independent review of the record allows us to draw only one reasonable inference: that the State’s use of the illegally obtained California statement at trial impelled Anson to take the stand and testify in rebuttal. … The competing inference, that Anson was not impelled by the State’s illegal use of his statement, is unreasonable in light of the facts.”

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David Ziemer can be reached by email.

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