Opinion
No. 2013AP891–CR.
2013-10-31
State of WISCONSIN, Plaintiff–Respondent, v. Alfredo VEGA, Defendant–Appellant.
Vega complains that the comment about the warden having overturned Wynkoop's conduct report was nonresponsive hearsay that improperly bolstered Wynkoop's credibility because it suggested that the warden had found Wynkoop's account more credible than Vega's. Putting aside the fact that Vega does not explain how the warden's action would qualify as a hearsay “statement” within the meaning of Wis. Stat. § 908.01(1), 1 we are satisfied there was no prejudice because the comment did little, if anything, to bolster Wynkoop's credibility. Wynkoop's passing reference to the warden overturning his conduct report was part of a rambling speech in which Wynkoop was attempting to explain away an inculpatory comment he had made. It was not the main focus of his answer. Moreover, the jury was not told what “a conduct report” was, or what specific allegations were made in the conduct report against Wynkoop, or what the warden's basis for overturning the report was. Vega contends that, if counsel had objected to this testimony as being unduly prejudicial, the circuit court “would have been obligated to exclude the evidence.” However, the circuit court stated at the postconviction hearing that it would not have excluded the evidence because it was presented in an unemotional manner. Because the officer's observations were relevant to whether the victim suffered great bodily harm, the circuit court would have had discretion to admit them and Vega suffered no prejudice from counsel's decision not to challenge the testimony.