State v. Small, 839 N.W.2d 160

Background

Amos Small was convicted by a jury of armed robbery as a party to a crime; he appealed the conviction and the denial of postconviction relief.
The robbery involved a masked gunman (undisputedly Brandon Joiner) who entered a furniture store, took ~$90–100 and a stolen employee cell phone.
Prosecution evidence tied Joiner to the crime (phone records, phone found in Joiner’s car, two of Joiner’s numbers in Small’s contact list, family connections).
At trial a store co-owner testified Small responded to the co-owner’s shout of “Gun, gun” by saying something like “No, no, no.” A surveillance video with unclear audio was played multiple times.
The court excluded one spectator mid-trial after the prosecutor reported the spectator allegedly intimidated a witness; defense objected but declined an offered evidentiary hearing.
Small claimed three trial errors on ineffective-assistance grounds: denial of a public trial, admission of a police officer’s lay interpretation of the video audio, and admission of testimony recounting a phone number (alleged hearsay).

Issues

Issue	Small's Argument	State/Respondent's Argument	Held
Whether exclusion of a particular spectator violated Small's Sixth Amendment public-trial right	Exclusion of the man deprived Small of a public trial	Exclusion was narrowly tailored to prevent witness intimidation and preserve trial integrity; court offered an evidentiary hearing	No violation; exclusion justified to prevent intimidation, offer of hearing was appropriate, and no prejudice shown to support ineffective-assistance claim
Whether officer’s testimony interpreting unclear audio on surveillance video required expert qualification	Officer was not qualified to render an expert interpretation of what Small said; defense counsel should have objected	Officer’s repeated personal perception of the recording qualified as admissible lay opinion under Wisconsin evidence rules; jurors also heard the audio and witness testimony	Officer’s lay interpretation admissible; even if counsel erred in failing to object, Small failed to show Strickland prejudice
Whether officer’s recounting of Truss’s phone number constituted inadmissible hearsay	The officer’s statement repeated an out-of-court assertion (the phone number) offered for its truth	The number was introduced to show the stolen phone had called that number (truth of matter asserted); State could have proved number by other means if objected	Treated as hearsay in form, but defense failed to show prejudice from counsel’s failure to object because alternative proof was available and record supports the number’s accuracy
Whether counsel rendered constitutionally ineffective assistance overall	Counsel’s failure to object to the three evidentiary items denied Small effective assistance	Counsel’s choices were reasonable; even assuming deficiency, Small did not demonstrate a reasonable probability of a different outcome (no Strickland prejudice)	Ineffective assistance claim rejected for lack of Strickland prejudice

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two-part ineffective assistance test)
Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (public-trial right and state application)
State v. Ndina, 315 Wis. 2d 653 (Wis. 2009) (public-trial framework and permissible limited closures)
State v. Huebner, 235 Wis. 2d 486 (Wis. 2000) (procedural forfeiture/preservation principles)
State v. Smith, 207 Wis. 2d 258 (Wis. App. 1997) (touchstone of Strickland prejudice is reliability/fairness of outcome)
United States v. Begay, 42 F.3d 486 (9th Cir. 1994) (law-enforcement lay witness permitted to interpret video after repeated review)
State v. Carprue, 274 Wis. 2d 656 (Wis. 2004) (considering evidentiary errors in ineffective-assistance context)
State v. Johnson, 153 Wis. 2d 121 (Wis. 1989) (de novo review of legal issues underlying ineffective-assistance claims)
State v. Flynn, 190 Wis. 2d 31 (Ct. App. 1994) (defendant must show what counsel should have done and how it would have changed the result)