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Criminal Procedure — ineffective assistance — joinder

Wisconsin Court of Appeals


Criminal Procedure — ineffective assistance — joinder

It was not ineffective assistance for the defendant’s attorney not to object to joinder of a felon in possession charge and a reckless injury charge.

“Here, the trial court considered the joinder issue, stating that it would have denied defense counsel’s motion for severance, had one been made, because ‘the evidence would have been duplicated almost in its entirety for context purposes and that the testimony of eleven witnesses, with two from Arkansas (including the twelve-year-old victim), would not have favored severance from the standpoint of judicial resources and economy.’ The trial court concluded that the facts underlying both charges were too intertwined to warrant separate trials. We understand these findings to also indicate that both charges arose from the same act, namely the defendant shooting multiple times at a home obviously occupied by people.”

“Based on our review of the record, we agree with the trial court that the charges were properly joined. The felon in possession and reckless injury charges were ‘based on the same act or transaction.’ See WIS. STAT. § 971.12(1). Evidence of both charges was based almost entirely upon the July 27, 2010 shooting of T.O. Multiple witnesses testified at trial, all providing testimony either as to Prescott’s efforts to obtain a gun, the shooting itself, or Prescott’s efforts to get rid of the gun. The facts underlying both charges overlap significantly. Conducting two trials with essentially the same evidence would have been against the interest of judicial economy.”


Recommended for publication in the official reports.

2011AP2952-CR State v. Prescott

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

Attorneys: For Appellant: Kulkoski, Glen B., New Berlin; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

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