COURT OF APPEALS DECISION DATED AND FILED March 11, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Bradly
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Dykman, P.J., Vergeront and Higginbotham, JJ.
¶1 PER CURIAM. Bradly Rosenthal appeals a judgment convicting him of arson and an order denying his postconviction motion in which he alleged ineffective assistance of counsel in part based on counsel’s failure to object to the prosecutor’s closing argument. The closing argument misstated the law relating to reasonable doubt. On appeal, Rosenthal requests a new trial in the interest of justice because the real controversy was not fully tried based on the prosecutor’s error. The State concedes the error, but argues that the interest of justice standard should not be used to supplant claims of ineffective assistance of counsel.[1] Because we conclude that Rosenthal has not established that the real controversy was not fully tried, we affirm the judgment and order.
¶2 In his closing argument, the prosecutor attempted to relate
the reasonable doubt instruction to the process of buying a house. He said even if he did pause and hesitate
before his purchase, he went ahead and bought the house and was convinced
beyond a reasonable doubt to do so. The
prosecutor’s closing statement is inconsistent with the pattern jury
instruction that describes a reasonable doubt as “such a doubt as would cause a
person of ordinary prudence to pause or hesitate when called upon to act in the
most important affairs of life.” See
¶3 Rosenthal relies heavily on State v. Neuser, 191
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The
State acknowledges that State v. Williams, 2006 WI App 212,
¶17, 296 Wis. 2d 834, 723 N.W.2d 719, allows the issue to be framed in
this manner and that Williams is binding on this
court. See Cook v. Cook, 208