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2004AP630 State v. Shomberg

By: dmc-admin//February 6, 2006//

2004AP630 State v. Shomberg

By: dmc-admin//February 6, 2006//

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And, even if there was an erroneous exercise of discretion, it was harmless error. This is because it is clear beyond a reasonable doubt that a rational jury would have reached the same result as the circuit court did for two reasons.

“First, although the court was limited to basing the decision on evidence in the record as a jury would have been, there was a vigorous cross-examination of three key witnesses. During the cross-examinations, counsel was able to flesh out factors that could cast doubt on the reliability of a witness’s identification. Second, in addition to the eyewitness identifications, there was strong evidence in the record of Shomberg’s guilt. There are several other pieces of evidence which support our conclusion that a rational jury would find Shomberg guilty of the sexual assault beyond a reasonable doubt. First, Shomberg was immediately identified from the police sketch by both his parole officer, and by an acquaintance who resided with Shomberg in February 2002 in a drug rehabilitation facility. When each viewed the sketch that had been published in the newspaper, each independently contacted the police identifying the person in the sketch as Shomberg.

“Second, Shomberg wrote a letter to his friends/alibi witnesses, asking them to corroborate his story. Shomberg’s letter recounts in great detail the version of the events he had related to police concerning his whereabouts on March 8 and 9, 2002, and his being in the presence of these persons at the time of the assault. Third, Ferguson had reported to the police that the assailant was wearing a long-sleeved gray knit shirt or sweatshirt. In court, Ferguson positively identified a long-sleeved gray sweater that police had recovered from Shomberg’s grandmother as belonging to Shomberg. Shomberg often stayed with his grandmother. Fourth, Shomberg’s alibi witnesses were not determined to be credible by the circuit court. The trier of fact is in the best position to judge the credibility of the witnesses. In this case, the circuit court found that various inconsistent statements, admissions of lies or a willingness to lie to police, and difficulties answering questions directly, destroyed the credibility of Shomberg’s alibi witnesses. Finally, it is significant that although the lineups were simultaneous in form, they were sequential in fact….When we consider the information elicited by Shomberg’s counsel during cross-examination of the three witnesses noted earlier, opening statements and closing arguments, and his alibi defense, we conclude that the testimony of Shomberg’s expert was not necessary to his defense. Therefore, Shomberg’s constitutional right to present a defense was not violated by the exclusion of expert eyewitness testimony.”

The decision of the court of appeals is affirmed.

DISSENTING OPINION: Abrahamson, Ch. J. “The circuit court did not appear to appreciate the import of the proffered expert witness testimony relating to simultaneous lineups compared to sequential lineups. Instead of focusing on the weaknesses inherent in a simultaneous lineup in determining whether to admit expert testimony, the circuit court kept returning to the expert’s testifying to other weaknesses of eyewitness identification, many familiar to triers of fact, such as the effect of stress, darkness, and limited opportunity to observe on the reliability of eyewitness identification. The circuit court then excluded the expert’s testimony as not helpful. If the majority opinion is saying that the circuit court already knew about ‘relative judgment’ in simultaneous lineups, then it was proper not to admit the testimony. The interaction between the circuit court and defense counsel clearly demonstrates, however, that the circuit court did not fully understand Shomberg’s offer of proof. The circuit court repeatedly strayed away from factors that require expert testimony such as relative judgment and back to factors such as lack of light and whether the eyewitness had been drinking, which are decidedly different. Furthermore, the circuit court conceded that, at least prior to the offer of proof, it lacked knowledge or understanding of relative judgment, stating that it had never heard of the term ‘relative judgment’ prior to reading the expert report….For the reasons set forth, I dissent. I conclude that the defense’s expert witness testimony relating to relative judgment in simultaneous lineups was necessary to the defendant’s case; its exclusion was a due process violation of Shomberg’s right to present a defense.”

DISSENTING OPINION: Butler, J. “The majority concludes that the circuit court did not erroneously exercise its discretion in excluding the expert testimony on eyewitness identification proffered by the defendant, and that the absence of such testimony did not deprive him of his constitutional right to present a defense. Because I disagree with these conclusions, and because I conclude that there was a significant failure of communication between the trial court and defense counsel regarding the admissibility of some of the proffered expert testimony, I respectfully dissent.”

Court of Appeals; Crooks, J.

Attorneys:

For Appellant: Charles W. Giesen, Morris D. Berman, Madison

For Respondent: Christopher G. Wren, Peggy A. Lautenschlager, Madison

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