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State v. Falk6/29/2000
lying, in itself, is insufficient to render admissible prior consistent statements. See State v. Peters, 166 Wis. 2d 168, 177, 479 N.W.2d 198 (Ct. App. 1991) "The allegation must be that the fabrication is recent or based upon an improper influence or motive. This requirement exists because the prior consistent statements must predate the alleged recent fabrication of motive before they have probative value." Id. The purpose of the prior consistent statement is a specific one-to rebut the allegation of recent fabrication or improper influence or motive. See § 908.01(4)(a)2. "Absent a charge of recent fabrication or improper influence or motive, evidence of a prior consistent statement does not make courtroom testimony more credible." Peters, 166 Wis. 2d at 177.
. We are unable to discern from the testimony or argument that the prosecutor implied that Richard had recently fabricated his declaration of innocence, or asserted his innocence at trial because of a specific improper motive or influence. Indeed, it is apparent from the trial testimony that Richard claimed he was innocent to many people before he made the confession.
. However, even if the testimony of these witnesses would have been properly admitted had defense counsel not misunderstood the court's ruling, and assuming this misunderstanding constitutes deficient performance, we agree with the trial court's analysis of prejudice. The jury heard Richard's testimony that he falsely confessed, and why he did so. Evidently the jury did not believe that testimony in light of the very detailed confession. The fact that Richard told others that he was going to confess even though he did not injure Laura proves only that he has repeated his claim of innocence and the reasons for a false confession to others; it does not detract from the persuasive force of the detailed contents of the confession.
. In summary, although there are a few points on which trial counsel was deficient, or on which we assume for purposes of argument that he was deficient, Richard has not shown a reasonable probability that, but for those deficiencies, the result of the trial would have been different.
NEW TRIAL IN THE INTEREST OF JUSTICE
. Richard seeks a new trial under Wis. Stat. § 752.35 which permits us to grant relief if we are convinced "that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried." In order to establish that the real controversy has not been fully tried, Richard must convince us that the jury was precluded from considering "`important testimony that bore on an important issue' or that certain evidence that was improperly received `clouded a crucial issue' in the case." State v. Darcy N.K., 218 Wis. 2d 640, 667, 581 N.W.2d 567 (Ct. App. 1998). To establish a miscarriage of justice, Richard must convince us there is a substantial degree of probability that a new trial would produce a different result. See Darcy, 218 Wis. 2d at 667.
. We decline to order a new trial in the interests of justice. As we have already explained, Richard has not persuaded us that the evidence that was not presented concerning Shannon, to show she rather than Richard committed the offense, would be admissible at a new trial. Therefore, we cannot say significant evidence was not heard which should have been heard. And without that evidence, the evidence at a new trial would not differ significantly from that which was already presented. Therefore, we cannot say there is a substantial degree of probability that a new trial would produce a different result.
By the Court. -- Judgment and order affirmed.
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