By Deborah G. Spanic, legal writer

Feb. 22, 2010 – The Milwaukee County Circuit Court was clearly in error in allowing sworn testimony from a witness taken during an ex parte hearing to be introduced as testimony during a jury trial, according to the Wisconsin Court of Appeals.  In reversing and remanding for a new trial in State v. Carter, No. 2009AP378-CR (WI App. Feb. 17, 2010), the appeals court found that the defendant, Brandon J. Carter, was denied his right to counsel and right to be present.  

Carter was charged with being a felon in possession of a firearm and disorderly conduct while armed. A jury trial was scheduled, but on that date the State advised the trial court it could not proceed because several of its witnesses had failed to appear, including Felicia Jones. The court adjourned and issued body attachments for Felicia Jones and another witness.

Several weeks later, the State appeared in court for a hearing on Felicia Jones’ bench warrant, and at that time the trial court discussed with Jones the importance of her appearing at the trial. In addition, at the same hearing, the court placed Jones under oath and questioned her in detail about the incident at issue in the trial in which she believed Carter pulled a gun on her.  Neither Carter nor his attorney was present during the court’s questioning.

During Jones’ testimony at trial, she testified that during the incident, the apartment was not well lit and that Carter pulled an “object” out of a bag. She was also shown a gun that was found as part of the investigation, and she testified it was not the same object that Carter had with him at the time of the incident. On redirect, Jones was impeached with the transcript from the ex parte hearing where she testified that Carter “pulled” a gun on her. On re-cross, however, she stated that her trial testimony, where she never saw Carter with a gun, was truthful.

Right to counsel and right to be present

Carter argued on appeal that he was denied his constitutional right to counsel and constitutional and statutory right to be present when the trial court conducted an ex parte hearing and took sworn testimony from Jones on substantive issues of the case. See Id., ¶ 17-19. Carter further argues that the hearing “morphed into an evidentiary hearing … when the court decided to swear Ms. Jones and then take testimony from her.” See Id., ¶ 20. The State conceded this point, but disputed whether Carter’s absence caused him any harm.

The State, as beneficiary of any error on the part of the court, had the burden of proving the error was harmless, which requires proof beyond a reasonable doubt that a “rational jury would have found the defendant guilty absent the error.” See Id., ¶ 22-23.

Whether the error was harmless

The court reviews a number of factors to determine whether or not an error was harmless, as set out in State v. Jorgensen, 2008 WI 60, ¶23, 310 Wis. 2d 138, 754 N.W.2d 77, including:

1. The frequency of the error;
2. the importance of the erroneously admitted evidence;
3. the presence or absence of evidence corroborating or contradicting;
4. whether the erroneously admitted evidence duplicates untainted evidence;
5. the nature of the defense;
6. the nature of the State’s case; and
7. the overall strength of the State’s case.

Although the ex parte testimony was used only once to impeach Jones’ trial testimony, the testimony was important. At trial, there was no physical evidence connecting Carter to the gun, so jurors’ credibility determinations were paramount. The ex parte testimony was also the only time Jones stated she saw Carter with a gun, which differed significantly from her trial testimony.

After applying the harmless error factors, the appeals court concluded that the trial court’s decision to take sworn testimony during an ex parte hearing and then to allow that testimony to be used to impeach the witness during trial was not harmless. It was not clear beyond a reasonable doubt that a rational jury would have found Carter guilty had the ex parte testimony not been admitted during trial. As a result, the court remanded and ordered a new trial during which there should be no reference to the ex parte testimony.