State v. Kyle C. Engen, 2024AP002173-CR

Engen was convicted after a jury trial of second-degree intentional homicide, attempted second-degree intentional homicide, and felon in possession of a firearm arising from a shooting after a drug deal went bad. 1
The State presented eyewitness and post-shooting statements evidence that Engen fought with Lezine in the car and shot at the car while Lezine remained inside. 2
The defense claimed Engen acted in self-defense when Lezine advanced toward him outside the car after Engen exited with a backpack containing marijuana and a gun. 3
At trial and in rebuttal, the prosecutor argued Engen's testimony was inconsistent with his earlier statements and said the prosecutor and police believed Engen was guilty. 4
Engen moved for postconviction relief, alleging prosecutorial misconduct, ineffective assistance for not objecting, and ineffective assistance for not calling a bloodstain analyst; the circuit court denied relief after a Machner hearing. 5
The court of appeals affirmed, concluding there was no prosecutorial misconduct and no prejudice from counsel's failure to present bloodstain-pattern evidence. 6

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did prosecutor comment on Engen's post-Miranda silence? 7	State said Engen's trial story was his first version and exploited his silence.	Engen said the remarks targeted post-arrest silence.	No; comments compared trial testimony to earlier inconsistent statements. 8
Did prosecutor improperly vouch for guilt? 9	State argued the prosecutor and police believed Engen was guilty.	Engen said this was improper personal vouching.	No reversible misconduct; it was a fair invited response. 10
Did prosecutor imply defense counsel suborned perjury? 11	State suggested Engen and counsel fabricated trial testimony.	Engen said the rebuttal falsely implied counsel coached perjury.	No; prosecutor argued Engen changed his story, not that counsel suborned perjury. 12
Was counsel ineffective for not calling a bloodstain analyst? 13	Engen said expert testimony would support self-defense and rebut the State.	State said the expert would not change the core issue.	No prejudice; expert could not say where Lezine was shot and partly aided the State. 14

State v. Lettice, 205 Wis. 2d 347 (Ct. App. 1996) (prosecutorial misconduct review is discretionary 15)
State v. Brecht, 143 Wis. 2d 297 (Wis. 1988) (use of post-Miranda silence for impeachment violates due process 16)
State v. Nielsen, 247 Wis. 2d 466 (Ct. App. 2001) (silent-comment test asks whether jury would naturally take remarks as silence reference 17)
State v. Cooper, 267 Wis. 2d 886 (Ct. App. 2003) (courts assess silence comments in context 18)
State v. Hurley, 361 Wis. 2d 529 (Wis. 2015) (prosecutor may argue from evidence and say evidence convinces the prosecutor 19)
United States v. Young, 470 U.S. 1 (U.S. 1985) (personal opinions of guilt are improper vouching 20)
State v. Jackson, 302 Wis. 2d 766 (Ct. App. 2007) (prosecutor's belief is proper only if tied to evidence 21)
State v. Wolff, 171 Wis. 2d 161 (Ct. App. 1992) (invited response must still be fair and not prejudicial 22)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance requires deficient performance and prejudice 23)
State v. Love, 284 Wis. 2d 111 (Wis. 2005) (deficiency and prejudice standards under Strickland 24)
State v. Johnson, 153 Wis. 2d 121 (Wis. 1990) (ineffective-assistance determinations are reviewed independently 25)
State v. Machner, 92 Wis. 2d 797 (Ct. App. 1979) (hearing used to evaluate counsel's effectiveness 26)
State v. Balliette, 336 Wis. 2d 358 (Wis. 2011) (Machner hearing allows counsel to explain case handling 27)