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Counsel not ineffective for failing to object to vouching at trial and impermissible factors at sentencing

State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)

The court of appeals held that an officer’s testimony that another witnesses’s testimony was “very believable” did not qualify as “vouching” when considered in context. It also held that the circuit court did not impermissibly rely on its own comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when it sentenced Burks. Thus, his lawyer was not ineffective when he failed to object to these alleged errors.

Vouching. No witness may testify that another mentally and physically competent witness is telling the truth because that interferes with the jury’s responsibility–to assess witness credibility. State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984). In this case, Officer Kurtz called a witnesses’s explanation that she bought drugs from Burks before the homicide at issue “very believable.” The court of appeals held that this did not qualify as vouching because:

¶17 . . . Kurtz testified that as a part of the investigation into Karboski’s death, he identified E.G., who then voluntarily agreed to cooperate with the investigation. Kurtz stated that E.G.’s account of her drug purchases, her interaction with Karboski, and her association with Burks matched the information found on her phone. Because Kurtz found E.G. “very believable,” he set E.G. up to buy heroin from Burks, ultimately leading to Burks’s arrest. Contrary to Burks’s argument, Kurtz did not tell the jury that E.G.’s testimony would be credible. Rather, Kurtz described the investigation into Karboski’s death, E.G.’s role in the investigation, and the process of apprehending Burks. Kurtz’s testimony did not violate the Haseltine rule.

Comments about the opioid epidemic, etc. This is a Len Bias case. The State prosecuted Burks for 1st degree reckless homicide for delivering a fatal dose of drugs to Karboski. Among other things, the sentencing court talked about the purpose of the Len Bias law, how difficult cases are and about how Burks and the medical and pharmaceutical industries profit from a person’s addiction. Burks filed a postconviction motion arguing that his lawyer should have objected. The postconviction court clarified that it didn’t actually rely on those comment when it sentenced Burks, and the court of appeals believed this clarification. It held in part:

¶20 Burks fails to establish that the sentencing court actually relied on its comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when rendering its sentence. Indeed, the court stated that those comments “have[] nothing to do with” Burks. The postconviction court clarified that the sentencing court held Burks responsible for his role in profiting from “the market of addiction,” and that the sentencing court “intended to punish [Burks]” for his particular role in Karboski’s death. The sentencing court also sought to protect the public by remov[ing] [Burks] from the chain of distribution” and to “deter others from preying upon [others in] the community,” namely those with addictions. See State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994) (A postconviction court has an opportunity to explain its sentencing
remarks in postconviction proceedings.).

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