Criminal Procedure — new trials

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — new trials

Where the jury did not hear relevant evidence that the defendant did not participate in the crime, a new trial is required in the interests of justice.

“The State built its case against Davis primarily based upon: (1) Henderson’s testimony that Davis was the third robber; (2) Detective Domagalski’s testimony that Davis indicated that he was ‘present’ at the ‘dope house’ and ‘fe[lt] guilty’ about Matthews’s death; (3) Davis’s confirmation of those statements after asking for a lawyer; and (4) Ringstad’s testimony that Davis confessed to the armed robbery and shooting death of Matthews. The State’s theory was that Henderson and Ringstad’s testimony served as proof of Davis’s guilt. That inference is inconsistent with the later statements made by Griffin, Reed and Winkler. We agree with the State that police testimony about Davis’s admission in and of itself was not subject to suppression because it was made before Davis invoked his right to counsel. However, Davis’s confirmation of his statements after he requested counsel was admitted in violation of Edwards. See id., 451 U.S. at 485-86. Although this admission was harmless error in the context of the case as tried, it is not harmless error in light of Griffin, Reed and Winkler’s testimony at the postconviction hearing. The crucial issue of whether Davis was actually involved in the robbery and the murder of Matthews was not fully tried because the jury did not have the opportunity to hear that testimony and to weigh that testimony against Davis’s admission, without the emphasis of Davis’s statement by adding the improper confirmation by Davis after he invoked his right to counsel.”

Reversed and Remanded.

Recommended for publication in the official reports.

2010AP1856 State v. Davis

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

Attorneys: For Appellant: Henak, Robert R., Milwaukee; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee