March 8, 2013 – Willie McDougle’s trial counsel was not ineffective for failing to object to a medical examiner’s testimony, a state appeals court has ruled while affirming McDougle’s first-degree intentional homicide conviction.
In 2007, McDougle was accused and convicted of shooting and killing Larry Ponder at the Diamonds Pub in Milwaukee. At trial, witnesses said they saw McDougle shoot Ponder. McDougle, who did not testify at trial, argued that he didn’t shoot anybody.
Medical examiner Christopher Poulos testified for the state. Dr. Poulos was present during Ponder’s autopsy, but did not perform it.
He relied on the autopsy protocol followed by another examiner, Dr. Jeffrey Jentzen, and other evidence to conclude that Ponder died of blood loss from multiple gunshot wounds. Jentzen no longer works for the medical examiner’s office.
However, Poulos did not agree with all the conclusions reached by Jentzen, whose autopsy reports were admitted into evidence. Counsel made no objections.
In his postconviction motion for relief, McDougle argued that his lawyer should have objected to Poulos’s testimony on the grounds that he did not perform the autopsy – he “merely testified as to the opinions and findings of Dr. Jentzen.” This was a violation of McDougle’s right to confront the witnesses against him, McDougle asserted.
He also said Jentzen’s autopsy reports were inadmissible as testimonial hearsay. The circuit court rejected McDougle’s arguments, and in State v. McDougal, 2011AP2852-CR (March 5, 2013), the District I Wisconsin Court of Appeals affirmed.
“[T]estimony and documentation confirming that the victim died of blood loss from gunshot wounds was unnecessary, its admission was harmless, and trial counsel’s failure to object did not subject McDougle to prejudice,” Judge Patricia Curley wrote.
The three-judge appeals panel noted that several witnesses testified that they saw McDougle shoot Ponder at close range. The court also rejected the assertion that proving a Confrontation Clause violation precludes the need to show prejudice.
“The Bullcoming court did not hold that the prejudice analysis was not applicable to Confrontation Clause violations,” wrote Judge Curley, referring to the U.S. Supreme Court’s decision in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).
McDougle’s argument that counsel was ineffective for failing to object to evidence that he previously committed two felonies was also rejected.
McDougle was also charged as a felon in possession of a firearm. He said that charge only required the jury to hear about one prior felony, not two, and allowing that evidence influenced the jury’s perception of him as a “habitual lawbreaker.”
“[T]hat two convictions were admitted instead of one is simply not enough to show that trial counsel’s performance was deficient,” Judge Curley wrote.
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