Criminal Procedure — Confrontation Clause

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — Confrontation Clause

A jury convicted Joshua L. Howland of three counts of second-degree sexual assault of a child as a persistent repeater. At trial, the court denied defense counsel’s request to question a State’s witness about her pending criminal charges. Postconviction, Howland argued that the trial court’s ruling should have prompted defense counsel to assert his right to confrontation and was ineffective for failing to do so. Instead of finding counsel ineffective, however, the trial court concluded that the error was its own. It nonetheless held that the controversy was fully tried, that any error was harmless and that a different result was not likely. Here, the issue again is framed as ineffective assistance rather than trial court error. Whether counsel should have made a confrontation argument or the trial court on its own should have permitted the cross-examination, we conclude that the failure to make the jury aware of the testifying witness’ pending criminal charges was prejudicial error. We reverse. This opinion will not be published.

2011AP532-CR State v. Howland

Dist II, Kenosha County, Warren, J., Per Curiam

Attorneys: For Appellant: LaZotte, Paul G., Madison; For Respondent: Balistreri, Thomas J., Madison; Zapf, Robert D., Kenosha