Appeals Court: Failure to Move for Severance of Criminal Charges Not Prejudicial

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 16, 2012 – Defendant Joshua Prescott, convicted on two charges related to a Milwaukee shooting, said his lawyer should have moved to sever the charges to prevent the jury from learning of a prior felony conviction that prohibited him from possessing guns.

But in State v. Prescott, 2010CF4884 (Nov. 14, 2012), the District I Wisconsin Court of Appeals upheld Prescott’s conviction and struck down his ineffective assistance of counsel claim.

A jury convicted Prescott of first-degree reckless injury by use of a dangerous weapon and possession of a firearm by a felon. In July 2010, Prescott fired a gun in the direction of a home after a dispute with one of its residents. The gunfire hit a 12-year-old girl, but she survived.

In connection with the felon in possession charge, the jury learned that Prescott had a previous felony conviction. In his postconviction motion, Prescott argued that his lawyer should have moved to sever that charge so a separate jury would not learn about the prior felony. Like the trial court, a three-judge appeals panel rejected Prescott’s postconviction arguments.

“In arguing that his trial counsel was ineffective for failing to seek severance, Prescott must show that it is reasonably probable that severance would have resulted in his acquittal of the reckless injury charge,” wrote Judge Joan Kessler. “He has not done so.”

The appeals panel noted the overwhelming evidence against him, including multiple witnesses and his text message to an acquaintance asking for a “mask and shells” the day of the crime. It also noted the charges were joined properly and any motion to sever would have been denied.

“The trial court concluded that the facts underlying both charges were too intertwined to warrant separate trials,” Judge Kessler noted. “Based on our review of the record, we agree with the trial court that the charges were properly joined.”

The panel also rejected Prescott’s argument that evidence of the prior felony was inadmissible on the reckless injury charge under Wis. Stat. section 906.09(1) because he did not testify.