Criminal Procedure — ineffective assistance — right to public trial

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance — right to public trial

The defendant’s attorney was not ineffective for failing to seek an evidentiary hearing on whether the exclusion of a member of the public was appropriate.

“The trial court handled the situation with aplomb and appropriate caution.  First, preventing witness intimidation of both those who have already testified and those who have not yet testified ensures three of the four reasons underlying the right to a public trial that Ndina adopted:  (a) fairness of the trial; (b) encouraging persons to testify; and (c) discouraging fear-based perjury. Smith’s trial was open to everyone but the man who, according to what we have in the Record, had implicitly threatened the witness.  Further, the trial court’s order was no broader than necessary to protect those interests.  See id., 2009 WI 21, ¶83, 315 Wis. 2d at 699, 761 N.W.2d at 634.  Most significantly, however, the trial court offered to hold an evidentiary hearing that would either confirm or rebut the prosecutor’s assertion.  Cf. id., 2009 WI 21, ¶82, 315 Wis. 2d at 699, 761 N.W.2d at 634 (objecting lawyer must suggest reasonable alternatives to excluding persons from a public trial).”

“Small has not even alleged that the exclusion from the trial of the man who allegedly approached the witness deprived him of a fair trial, and by no stretch of the imagination did the trial court’s exclusion of that person come anywhere near justifying imposing a per se rule here that would force a do-over. See id., 2009 WI 21, ¶48 n.23, 315 Wis. 2d at 681 n.23, 761 N.W.2d at 625 n.23 (Cases ‘hold that a closure may be viewed as trivial and that, under some circumstances, a closure may be so trivial as not to violate the Sixth Amendment even if the closure is unjustified.’) (emphasis in original).  Thus, in an ineffective-assistance-of-counsel context, Small was not prejudiced by his lawyer’s decision to reject the trial court’s offer to hold an evidentiary hearing before cementing its order to exclude the man.”

Affirmed.

Recommended for publication in the official reports.

2012AP2049-CR State v. Small

Dist. I, Milwaukee County, Cimpl, Guolee, JJ., Fine, J.

Attorneys: For Appellant: Rose, Christopher William, Kenosha; For Respondent: Loebel, Karen A., Milwaukee; Wellman, Sally L., Madison