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Criminal Procedure — cross-examination — ineffective assistance — closing arguments

Criminal Procedure — cross-examination — ineffective assistance — closing arguments

Donovan M. Burris appeals from a judgment of conviction for first-degree reckless injury while armed and being a felon in possession of a firearm, and from an order denying his motion for postconviction relief. Burris’s appeal is before us on remand from the supreme court. On Burris’s initial appeal, we reversed Burris’s conviction and remanded for a new trial. See State v. Burris, No. 2009AP956-CR, unpublished slip op. (WI App Jan. 26, 2010) (“Burris I”). We concluded that there was a reasonable likelihood that the trial court’s answers to specific questions from the jury could have led the jury to misapply the jury instructions. Id., ¶32. During deliberations, the jury submitted written questions asking whether it could consider Burris’s conduct after he shot Kamal Rashada in analyzing the utter disregard element of the first-degree reckless injury charge. Id., ¶18. In answering the jury’s questions, the trial court quoted language from State v. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170. We concluded that the trial court’s response could have led the jurors to apply potentially confusing jury instructions. See Burris I, No. 2009AP956-CR, unpublished slip op., ¶33. The supreme court reversed our initial decision and remanded the matter to this court with instructions to consider issues initially briefed, but not considered in our original decision. See State v. Burris, 2011 WI 32, ¶67, 333 Wis. 2d 87, 797 N.W.2d 430 (“Burris II”).

We now consider Burris’s remaining appellate arguments. Specifically, Burris argues that: (1) the trial court erred when it allowed the State to cross-examine him on an irrelevant issue and then also allowed the State to present extrinsic evidence, in the form of a rebuttal witness, on that issue; (2) his trial counsel provided ineffective assistance by: (a) eliciting inadmissible other acts testimony from Cathy Rashada, the victim’s mother, (b) failing to request a curative jury instruction concerning that testimony, and (c) failing to object to portions of the State’s closing arguments, which Burris contends were inappropriate; and (3) he is entitled to a new trial in the interest of justice. We disagree and affirm the trial court. Not recommended for publication in the official reports.

2009AP956-CR State v. Burris

Dist I, Milwaukee County, Sosnay, Cimpl, JJ., Kessler, J.

Attorneys: For Appellant: Lichstein, Byron C., Madison; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

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