State v. Ward, 2011 WI App 151

Ward was convicted by jury of burglary and first-degree sexual assault while armed; DNA evidence from the crime scene initially did not match Ward's convicted-felon DNA data-bank profile due to misfiling; fingerprint evidence tied Ward to the home where the assault occurred; a court commissioner entered an order requiring Ward to provide a DNA sample without sworn supporting evidence; the charges were dismissed and later refiled; later testing showed Ward's DNA matched the semen found on the victim, Enesha D.; the defense argued ineffective assistance and a denial of the right to present a defense based on inconsistent DNA data and eyewitness identification evidence; the trial court denied postconviction relief without a hearing; the appellate court reviews the claims de novo and applies Strickland v. Washington to ineffective-assistance claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
DNA-sample suppression due to invalid court order	Ward argues trial counsel should have moved to suppress the DNA sample taken under the invalid order.	State concedes the order was invalid but contends failure to suppress would not have changed outcome.	No prejudice; suppression would not have altered the result because curative affidavit could sustain a lawful warrant.
Hearsay testimony from officer about photo-array	Ward contends officer testimony about D.’s familiarity with photos was hearsay and prejudicial.	State contends any error was de minimis and not outcome-determinative.	Privilege not violated; any error was de minimis and did not undermine confidence in the verdict.
Right to present a defense—excluded Dorothy S. statements and initial DNA non-match	Ward asserts exclusion of Dorothy S.’s statements and initial non-match evidence violated his Sixth Amendment defense.	State asserts evidence was not material to the charged offense and proper Rule 904 balancing supported exclusion.	Exclusion not constitutional error; evidence not material to Ward’s guilt or innocence.
Equitable/judicial estoppel against the State regarding DNA evidence	Ward argues estoppel prevents State from relying on certain DNA evidence.	State challenges applicability of estoppel in criminal cases.	Estoppel not applicable; arguments rejected.

Strickland v. Washington, 466 U.S. 668 (1984) (establishes deficient performance and prejudice standard for ineffective assistance)
State v. Kerr, 181 Wis. 2d 372 (1994) (search warrant sufficient with probable cause and facts; warrant requirements discussed)
State v. Byrge, 225 Wis. 2d 702 (Ct. App. 1999) (counsel's duty to show how omitted steps would affect outcome)
Segura v. United States, 468 U.S. 796 (1984) (unconstitutional search leads to suppressible evidence)
State v. Sullivan, 216 Wis. 2d 768 (1998) (evidentiary rulings reviewed for impact on defense)
State v. Petty, 201 Wis. 2d 337 (1996) (judicial estoppel standards in a criminal context)
Washington v. Texas, 388 U.S. 14 (1967) (right to present a defense)
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) (materiality and admissibility of evidence for defense)
State v. Drown, 2011 WI App 53 (2011) (equitable estoppel not available against the State in criminal cases)
State v. Sullivan, 216 Wis. 2d 768 (1998) (evidentiary balancing under Rule 904.03)