MADISON - A state appeals court Thursday ordered a new trial for a Monroe man due to his attorney's failure to object to jurors hearing other charges on which her client was not being tried.
Carlos Aguirre Rivera, 43, was convicted of violating domestic abuse orders after his attorney, Ellen Craker, failed to object to the jury's hearing 13 times during the trial that the bail-jumping charges came from conduct that occurred while Rivera was on release for prior strangulation and felony intimation charges.
The District IV Court of Appeals agreed Rivera could have been prejudiced by jurors repeatedly hearing references to the strangulation and intimidation charges for which he was not on trial.
In reversing Circuit Judge Thomas Vale's refusal to grant Rivera a new trial, the appeals court concluded that, "Rivera was denied the effective assistance of counsel when his trial counsel failed to obtain a stipulation that would have prevented the jury from hearing multiple times that Rivera had been charged with strangulation and felony intimidation of a victim," according to the unsigned six-page opinion.
Rivera's appeal stems from a contentious relationship he had with a woman. Rivera had been released on bond after being charged in 2009 with felony strangulation and intimidation of a victim, misdemeanor battery and other offenses involving the woman.
While on release, Rivera was prohibited from having any contact with her. Rivera, whose first language is Spanish, thought that no contact meant no physical contact, and he texted and phoned the woman many times asking to talk to her, according to a brief by his appeals attorney.
Those communications lead to Rivera being charged in 2009 with 13 counts including felony bail jumping and violating a domestic abuse injunction.
Rivera went to trial on the strangulation, intimidation and battery charges, but was convicted only of misdemeanor battery, and sentenced in December 2011 to nine months in jail.
The subsequent multiple bail jumping and violating an injunction charges were consolidated and Rivera went to trial on them in April 2013.
To get a conviction for felony bail jumping, Green County District Attorney Gary Luhman had to prove that Rivera previously had been arrested or charged with a felony. Prior to trial, Rivera's fifth attorney, Craker, could have stipulated that her client had been charged with a domestic abuse felony which would have satisfied that element of the pending charge.
Instead, jurors heard that Rivera previously had been charged with strangulation and intimidation of a victim during jury selection, the trial and just prior to deliberations, all without an objection from Craker.
Allegations and evidence that a defendant committed offenses other than for which he is on trial are called "other acts" and have long been recognized by courts as inherently prejudicial. "Other acts" may lead a jury to believe a defendant "is a bad person and more likely to be guilty of the charged offense," Susan Alesia, Rivera's appeals attorney wrote the court.
The state did not contest that Craker performed deficiently in not obtaining the stipulation before trial. However, assertions that Rivera was prejudiced by it were vague and insufficient to overturn the convictions, Assistant Attorney General Robert Probst wrote in an appeal brief.
If jurors had been prejudiced by Rivera's "other acts" they would have convicted him on all bail jumping and restraining order charges, Probst wrote. He also wrote that Rivera was not prejudiced because there was little or no testimony or evidence about strangulation or intimation.
The District IV Court disagreed.
"Strangulation and felony intimidation of a victim charges are, by description, violent crimes; naming the charges was sufficient to prejudice the jury as to Rivera's character," according to the appeals opinion.
Requests for comment from Luhman and a spokesperson from the attorney general's office on the opinion and likelihood of retrying the case were not returned by deadline.
Although online court records indicate Rivera is an inmate at the Jackson Correctional Institution, Joy Staab, a Department of Corrections spokesperson, said Rivera currently is on supervised release until January 2018.
Carlos Aguirre Rivera, 43, was convicted of violating domestic abuse orders after his attorney, Ellen Craker, failed to object to the jury's hearing 13 times during the trial that the bail-jumping charges came from conduct that occurred while Rivera was on release for prior strangulation and felony intimation charges.
The District IV Court of Appeals agreed Rivera could have been prejudiced by jurors repeatedly hearing references to the strangulation and intimidation charges for which he was not on trial.
In reversing Circuit Judge Thomas Vale's refusal to grant Rivera a new trial, the appeals court concluded that, "Rivera was denied the effective assistance of counsel when his trial counsel failed to obtain a stipulation that would have prevented the jury from hearing multiple times that Rivera had been charged with strangulation and felony intimidation of a victim," according to the unsigned six-page opinion.
Rivera's appeal stems from a contentious relationship he had with a woman. Rivera had been released on bond after being charged in 2009 with felony strangulation and intimidation of a victim, misdemeanor battery and other offenses involving the woman.
While on release, Rivera was prohibited from having any contact with her. Rivera, whose first language is Spanish, thought that no contact meant no physical contact, and he texted and phoned the woman many times asking to talk to her, according to a brief by his appeals attorney.
Those communications lead to Rivera being charged in 2009 with 13 counts including felony bail jumping and violating a domestic abuse injunction.
Rivera went to trial on the strangulation, intimidation and battery charges, but was convicted only of misdemeanor battery, and sentenced in December 2011 to nine months in jail.
The subsequent multiple bail jumping and violating an injunction charges were consolidated and Rivera went to trial on them in April 2013.
To get a conviction for felony bail jumping, Green County District Attorney Gary Luhman had to prove that Rivera previously had been arrested or charged with a felony. Prior to trial, Rivera's fifth attorney, Craker, could have stipulated that her client had been charged with a domestic abuse felony which would have satisfied that element of the pending charge.
Instead, jurors heard that Rivera previously had been charged with strangulation and intimidation of a victim during jury selection, the trial and just prior to deliberations, all without an objection from Craker.
Allegations and evidence that a defendant committed offenses other than for which he is on trial are called "other acts" and have long been recognized by courts as inherently prejudicial. "Other acts" may lead a jury to believe a defendant "is a bad person and more likely to be guilty of the charged offense," Susan Alesia, Rivera's appeals attorney wrote the court.
The state did not contest that Craker performed deficiently in not obtaining the stipulation before trial. However, assertions that Rivera was prejudiced by it were vague and insufficient to overturn the convictions, Assistant Attorney General Robert Probst wrote in an appeal brief.
If jurors had been prejudiced by Rivera's "other acts" they would have convicted him on all bail jumping and restraining order charges, Probst wrote. He also wrote that Rivera was not prejudiced because there was little or no testimony or evidence about strangulation or intimation.
The District IV Court disagreed.
"Strangulation and felony intimidation of a victim charges are, by description, violent crimes; naming the charges was sufficient to prejudice the jury as to Rivera's character," according to the appeals opinion.
Requests for comment from Luhman and a spokesperson from the attorney general's office on the opinion and likelihood of retrying the case were not returned by deadline.
Although online court records indicate Rivera is an inmate at the Jackson Correctional Institution, Joy Staab, a Department of Corrections spokesperson, said Rivera currently is on supervised release until January 2018.