6th Amendment Violation

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Thomas Michael Barrett

Case No.: 2018AP2324-CR

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: 6^th Amendment Violation

Thomas Michael Barrett appeals a judgment of conviction, following a jury trial, of one count of possession of a firearm silencer, contrary to WIS. STAT. § 941.298(2) (2017-18). Barrett also appeals from the order denying his postconviction motion for relief. On appeal, Barrett raises the issues that he raised in his postconviction motion. He contends that: (1) WIS. STAT. § 941.298 is an unconstitutional infringement upon the right to keep and bear arms, both facially and as applied; (2) § 941.298 is void for vagueness; and (3) the government engaged in outrageous conduct by pressuring Barrett to commit a crime and by intimidating Wait.

With regard to Barrett’s first claim, we conclude that Barrett’s arguments reflect the defense of entrapment, not outrageous government conduct. As to Barrett’s second claim, Barrett contends that the State violated his Sixth Amendment right to compulsory process by intimidating one of his witnesses and preventing the witness from testifying. Barrett relies on two exhibits from the record to support his claim—a letter from his then-defense counsel to Wait, and an affidavit from Wait stating his apprehension to testify because of “threats from the government.” Neither exhibit supports Barrett’s assertion.

Wait’s affidavit is also insufficient to support Barrett’s claim. Wait’s four paragraph affidavit does not describe any threatening State conduct, nor does it describe any personal interaction between Wait and the State. It simply states that defense counsel alerted Wait to the possibility of a criminal investigation or criminal charges. Moreover, after defense counsel sent the letter to Wait, the trial court held multiple hearings in which the subject of Wait’s potential testimony was addressed. Barrett did not raise concerns about witness intimidation at any of those hearings, nor did the State address the possibility of pressing charges against Wait. Indeed Wait appeared at two of the hearings prepared to testify. The State did not issue charges against Wait after any of those hearings, despite being aware of Barrett’s plan to call Wait as a witness. In short, Wait’s affidavit belies the record. Barrett has not met his burden of establishing outrageous government conduct

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.