Criminal Procedure — partial verdicts — ineffective assistance

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — partial verdicts — ineffective assistance

In this case, Michael Grant was charged with two counts of repeated sexual abuse of a child involving two different victims, in incidents that were dissimilar in time, place, and manner. As the jury was deliberating the two charges, it sent a note to the court that it had reached an agreement on one of the counts, but could not agree on the other. The trial court sua sponte suggested to counsel that the court take the verdict on the one charge, announce it in open court, and send the jury back to deliberate on the other. Neither counsel objected. That is the first issue, whether the failure to object to this partial verdict procedure was ineffective assistance that prejudiced Grant.

The second issue relates to what occurred after the court announced the verdict agreed upon by the jury, which was “not guilty” regarding the charge involving the first alleged victim, A.W. Grant claims that A.W. broke out in loud sobbing, so much so that she had to be comforted, and that her brother slammed his hand on the back of a chair and stormed out of the courtroom, uttering an expletive on the way. Grant asserts that the jury watched and heard this extraneous information and some jurors appeared stunned. Grant argues that this information had to have detrimentally affected the jury’s consideration of the remaining charge.

As regards the first issue, since the law on partial verdicts is unsettled in Wisconsin and across the United States, there can be no ineffective assistance. As to the alleged outburst, the sole evidence that it occurred came from the defense investigator. The trial court, seated on the bench at the same time, had a different recollection. We will side with the judge. We affirm. Not recommended for publication in the official reports.

2013AP515-CR State v. Grant

Dist II, Walworth County, Race, J., Brown, C.J.

Attorneys: For Appellant: Askins, Martha K., Madison; Breedlove, Tristan, Madison; For Respondent: Wellman, Sally L., Madison; Necci, Daniel A., Elkhorn