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Court finds guilt overwhelming

“The trial court’s communications regarding the reading back of Anderson’s testimony did not prejudice Anderson. First, the State had a strong case against Anderson. The jury had the opportunity to view the video interview of M.L., in which she convincingly recounted the sexual assault.”

Hon. Patricia S. Curley
Wisconsin Court of Appeals

Even if was ineffective assistance of counsel for an attorney to fail to object to a trial court’s unilateral decision not to have the defendant’s testimony read back to the jury, the Wisconsin Court of Appeals held on Oct. 11 that, where the evidence was strong, and the defense weak, the defendant was not prejudiced by the failure to object.

Charlene Anderson, the legal guardian of 9-year-old M.L. and the wife of Lionel L. Anderson, called the police after she received a phone call from her sister who told her that she had reason to believe that M.L. may have been sexually assaulted by Anderson.

After first denying that Anderson had assaulted her, M.L. eventually revealed to Charlene that Anderson made her perform oral sex when Charlene had been in the hospital.

After hearing about the assault, Charlene confronted Anderson and told him to leave. Anderson left, and traveled to Kentucky where he was arrested.

After the police were contacted, M.L. was interviewed by a social worker, and the entire interview was recorded on videotape. During the interview, M.L. described the sexual assault in detail.

“Because we cannot know what brought about the jury’s ultimate decision, but because we do know that it was twice denied testimony it considered important — testimony that was favorable to Anderson — Anderson is entitled to a new trial.”

Hon. Joan F. Kessler dissenting

Anderson was charged with first-degree sexual assault of a child. The State presented the video of M.L.’s interview with the social worker. Although the state sent Anderson’s attorney a notice of its intent to introduce the tape at the preliminary hearing, the tape was not introduced. The State never sent a subsequent notice of intent to introduced the tape at trial, and neither Anderson nor his trial attorney saw the video before trial. M.L. testified afterwards.

Before the trial, the State moved to introduce evidence concerning the effects of sexual assault through an expert witness; however, the expert witness was not named in the State’s witness list, and the expert never examined M.L. The expert explained the dynamics of child sexual abuse to the jury.

During Charlene’s testimony, she mentioned that after the sexual assault allegations became known, Anderson left the state and went to Kentucky.
Anderson’s attorney did not raise any objections to this evidence.

While the jury was deliberating, it requested to see the video of M.L. again, and the trial court permitted the jury to view it, over defense counsel’s objections.

Twice during deliberations, the jury asked to have Anderson’s testimony read back to them. The court did not, however, because they were not more specific as to which portions of the testimony they wished to rehear.

The court did not announce to the parties that the requests to rehear Anderson’s testimony had been made until after the jury had reached a verdict. Anderson’s counsel did not object to the court’s actions.

The jury found Anderson guilty, and he appealed. The court of appeals affirmed in a decision written by Judge Patricia S. Curley. Judge Ralph Adam Fine wrote a concurrence, and Judge Joan F. Kessler dissented.

What the court held

Case: State of Wisconsin v. Lionel N. Anderson, No. 2004AP2010-CR.

Issue: Was it error for a court to deny a jury’s request to review the defendant’s transcript without consulting the attorneys?

Holding: Although it was error, there was no prejudice, even if the defense attorney was deficient in not objecting to the procedure after the court announced its actions on the record, because the evidence of guilt was overwhelming, and the defense weak.

Counsel: Steven H. Gibbs, Eau Claire; Harry R. Hertel, Eau Claire, for appellant; Robert D. Donohoo, Milwaukee; Jeffrey J. Kassel, Madison, for respondent.

The court declined to consider whether the actions of Anderson’s attorney were deficient, because it concluded that he suffered no prejudice from the failure to object to the trial court’s communications with the jury.

The court acknowledged that sec. 805.13(1) obligates the trial court to conduct any communications with the jury on the record, and that State v. Burton, 112 Wis.2d 560, 334 N.W.2d 263 (1983), recognizes that a defendant has a constitutional right to be present during any communications between the judge and the jury.

Thus, the court agreed with Anderson that the trial court erred; however, it concluded the error was harmless.

The court reasoned, “After reviewing the trial transcript, we are satisfied that the trial court’s communications regarding the reading back of Anderson’s testimony did not prejudice Anderson. First, the State had a strong case against Anderson. The jury had the opportunity to view the video interview of
M.L., in which she convincingly recounted the sexual assault. In it, M.L.’s physical description of Anderson’s penis suggested that Anderson was not circumcised. Anderson admitted later that, in fact, he was not circumcised. M.L. also testified before the jury that what she said on the tape was true.”

The court also noted that several other witnesses testified that M.L. had told them about the assault.

In contrast, the court found, “Anderson’s defense was weak. It consisted of Anderson’s rambling, and often confusing, version of the events, in which he denied having any sexual contact with M.L.”

The court added, “Moreover, the jury indicated they wanted Anderson’s testimony read back to them because they did not understand it, not that they could not remember it. Had the testimony been read back, it would not have become more understandable, and it is likely that the rereading would have hurt Anderson more than it would have helped him.”

The court then found that Anderson’s counsel was not ineffective for failing to make any other objections.

The court wrote, “Anderson complains that his attorney was ineffective for failing to object to the viewing of M.L.’s video. Although the State may not have given Anderson’s attorney formal notice of the State’s intention to introduce the videotape at trial, the State did give formal notice that the tape would be introduced at the preliminary hearing. Additionally, it is apparent from the record that Anderson’s attorney was aware of the existence of the tape. … nowhere in the record does trial counsel state that he was taken by surprise by the State’s intention to show the tape to the jury or that he was unaware of the tape.”

The court also found no deficiency in the attorney’s failure to object to the expert witness’ testimony, because his attorney knew that an expert would be called, and the state gave notice, outlining the type of expert testimony that would be elicited.

Finally, the court concluded that Anderson’s counsel was not deficient in failing to object to Charlene Anderson testifying that Anderson fled the state after learning that the police had been contacted concerning M.L’s complaint, because flight is properly admissible as an admission by conduct.

The Dissent

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Case Analysis

Judge Kessler dissented, concluding, “The trial court’s decision to deny the jury’s request to hear Anderson’s testimony was especially damaging to Anderson’s case because, as is apparent from the record, he had difficulty communicating. After careful review of the mere twenty-five pages of transcript, which compose Anderson’s entire testimony, it is obvious why the jury had difficulty understanding portions of his testimony. Anderson, who testified he has a fourth grade education, is not an articulate witness. Several pages of the transcript involve obvious confusion between the questioner and Anderson as to dates when he became aware of certain material facts. Parts of Anderson’s testimony are unclear and confusing. From its reading of his testimony, the Majority concludes that Anderson was helped by not having the testimony repeated. I see that as a question the jury had a right to decide, but was erroneously not permitted to do so.”

Also disagreeing with the majority’s conclusion regarding the weight of the evidence, Kessler added, “this jury twice indicated a strong desire to hear Anderson’s testimony again — this request should have been carefully considered and, in my opinion, granted. … Because we cannot know what brought about the jury’s ultimate decision, but because we do know that it was twice denied testimony it considered important — testimony that was favorable to Anderson — Anderson is entitled to a new trial.”

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David Ziemer can be reached by email.

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