Criminal Procedure — ineffective assistance — harmless error

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance — harmless error

Where the defense in a homicide case was that the defendant did not commit the crime, any failure by defense counsel to object to testimony regarding the cause of death was harmless error.

“[I]mportantly, trial counsel’s decision not to object to Dr. Poulos’ testimony or the admission of Dr. Jentzen’s reports did not prejudice McDougle. Contrary to what McDougle argues, it is simply not true that without the testimony and reports at issue, ‘one could not conclude that the [victim’s] death was a gunshot homicide.’ As noted, multiple witnesses testified that they saw McDougle fire several shots into the victim at close range. Indeed, one such witness testified that McDougle pointed the gun ‘straight into [the victim’s] face,’ and shot him. (Some capitalization omitted.) Also, McDougle never challenged the victim’s cause of death. Rather, his defense at trial was that he was not the person who shot the gun. Additionally, we note that the autopsy report did not identify the victim’s assailant. In these circumstances, testimony and documentation confirming that the victim died of blood loss from gunshot wounds was unnecessary, its admission was harmless, and trial counsel’s failure to object did not subject McDougle to prejudice. See Strickland, 466 U.S. at 694.”

Affirmed.

Recommended for publication in the official reports.

2011AP2852-CR State v. McDougle

Dist. I, Milwaukee County, Ashley, Dallet, JJ., Curley, J.

Attorneys: For Appellant: Rosen, Mark S., Waukesha; For Respondent: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison