May 6, 2022 – The Wisconsin Court of Appeals has ruled that a defense lawyer did not provide ineffective assistance of counsel by failing to object to a police officer’s testimony about the truthfulness of a confidential informant.
In State v. McReynolds, 2021AP943 (April 12, 2022), the Court of Appeals District III held that the lawyer’s failure to object was not ineffective assistance of counsel because the officer’s testimony was not unconstitutional vouching testimony.
Testimony About Truthfulness
In 2014, the Eau Claire County District Attorney charged Hajji McReynolds with two felony counts of delivery of cocaine.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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Aaron Ranallo, an investigator with the Eau Claire County Sheriff’s office, testified at the trial about two controlled drug buys in which a confidential informant participated.
The informant carried a small video camera with him during the drug buys but the alleged exchange of drugs and money were not visible on the video recordings.
Under direct examination, Ranallo made four statements regarding the informant’s truthfulness.
Ranallo testified that he believed a statement made by the informant after the first drug buy was truthful and accurate. He also testified that he agreed with the informant’s statement that McReynolds had sold cocaine to the informant, and that he had no reason to believe that the informant had been untruthful.
Ranallo testified that he was not worried about the informant’s credibility regarding the informant’s account of the second drug buy and the altercation with McReynolds that preceded it.
Ranallo testified that the informant’s account of the second drug buy was consistent with what Ranallo observed on a video of the drug buy. He also testified that he had no reason to believe that the informant was untruthful about his observations of the second drug buy.
‘His Vice Lord Brother’
The informant testified that after the first drug buy, McReynolds broke his nose. The informant testified that McReynolds punched him because he owed money to KG, who the informant identified as “One of [McReynold’s] Vice Lord friends.”
During his testimony, the informant said that KG accompanied McReynolds to the second drug buy. When the prosecutor asked the informant who KG was, he replied “His Vice Lord brother.”
Sentencing Reasons in Writing
The jury convicted McReynolds on both drug charges.
During the sentencing hearing, the judge imposed five years of prison time and five years of extended supervision on each count, to be served concurrently. The judge stated her decision on the record.
The judge also stated that she would put the reasons for his sentencing decision in writing, as a courtesy to McReynolds, “because I just think that you may consider it demeaning and insulting.”
The judge explained that on three prior occasions, McReynolds had refused to come to court and on another occasion was restrained by his jailers after disrupting the trial.
After McReynolds’ petition for post-conviction relief was denied, he appealed.
Police Testimony not Vouching
Writing for a three-judge panel, Presiding Judge Lisa Stark explained that the failure of McReynold’s lawyer to object to Ranallo’s testimony was not ineffective assistance of counsel because Ranallo’s testimony was not unconstitutional vouching testimony.
Ranallo’s statements, Judge Stark explained, were offered to explain the course of the police interrogation, not to enhance the informant’s credibility.
“Ranallo’s opinions about the truthfulness of the informant’s statements were relevant to explain both the reason law enforcement relied upon the informant’s information—given their inability to observe the exchanges—and why they chose not to pursue any further investigation,” Stark wrote.
Ranallo’s first, second, and fourth statements were not impermissible vouching, Stark explained; they were elicited because the police couldn’t see the exchange of drugs and money during the two drug buys.
Ranallo hadn’t testified that the informant told the truth during the trial, Judge Stark pointed out.
Rather, Stark wrote, “he testified he thought the information provided by the informant at the time of the controlled buys was truthful, as it was supported by what he observed and it helped explain why he conducted the investigation as he did.”
Ranallo’s third statement – about whether the informant was being truthful about the altercation with McReynolds that occurred between the two drug buys – “was offered to explain why Ranallo continued in his investigation of McReynolds with the assistance of the informant and why the second drug buy took place despite the altercation,” Judge Stark wrote.
McReynolds argued that Ranallo’s testimony about the informant’s assertion that KG was a member of the Vice Lords gang constituted improper character evidence, and that his lawyer’s failure to object to that testimony constituted ineffective assistance of counsel.
Even if the representation by McReynold’s lawyer was rendered deficient by that failure, Judge Stark explained, McReynolds was not prejudiced by it.
Judge Stark pointed out that McReynolds’ argument amounted to only a single paragraph in his brief; as such, she explained, the argument was undeveloped.
Additionally, Stark explained that references to the Vice Lords in Ranallo’s testimony were fleeting and minor.
Sentencing, Rationale are Separate
Wis. Stat. section 973.017(10m)(a) requires a court to state the reasons for a sentencing decision in open court and on the record.
However, subsection (b) of the statute allows a court to state the reasons for a sentencing decision in writing if it determines that it is not in the defendant’s interest to state the reasons in the presence of the defendant.
McReynolds argued that section 973.017(10m)(b) applied only where a defendant waived the right to be present when a court states the reasons for sentencing, because the reasons for sentencing are “intrinsic to the pronouncement of the sentence.”
But it was clear from the statutory language that the legislature intended to make separate events of the sentencing decision and stating the reasons for that decision, Judge Stark explained.
McReynolds provided no legal authority for his claim that section 973.017(10m)(b) was unconstitutional as applied to him, Judge Stark pointed out.
Nothing in section 973.017(10m)(b) requires that a defendant assent to a court’s determination that it wasn’t in his interest for the rationale to be stated during the sentencing hearing, Stark explained.