2010AP909-CR State v. Eison

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Evidence
Spousal privilege; harmless error

Even though it was ineffective for counsel to fail to properly assert the marital privilege, the error was harmless.

“Had the select portions of Reynolds’ testimony that were privileged marital communications (the agreement that Reynolds would pick Eison up from work and Eison’s claim that his employer wasn’t paying him) not been included, it is still clear beyond a reasonable doubt that a rational jury would have found Eison guilty. These statements do not tend to support proof of an element of the crimes with which Eison was charged, nor do they detract from any defense Eison might have asserted. Without hearing the privileged communications, a jury still would have known that: Eison was unaccounted for between 6:00 p.m. on April 21 and 2:00 a.m. on April 22, a time span which included the robbery; Corrigan’s car was found about a block from Eison’s home with a parking ticket issued on April 22 at 4:50 a.m., about two hours after Eison returned home; Eison had a gambling debt of about $2000 which he owed ‘some people’; Eison decided not to return home until he paid that debt; Eison’s employer had been paying him; the gun he used to rob Corrigan was hidden in his house and delivered to police by Reynolds after he asked her to get rid of it; and, after having good light and substantial time to observe him, Corrigan unequivocally identified Eison as her abductor, identified his gun as the robbery weapon, and identified his jacket as the one worn by her abductor during the robbery. We conclude that it is clear beyond a reasonable doubt that a rational jury would have found Eison guilty absent the error of including the very limited privileged testimony from Reynolds. See Harvey, 254 Wis. 2d 442, ¶46.”

Affirmed.

Recommended for publication in the official reports.

2010AP909-CR State v. Eison

Dist. I, Milwaukee County, Donegan, J., Kessler, J.

Attorneys: For Appellant: Cornwall, Andrea Taylor, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

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