Background
After a traffic stop, officers seized cash from Terry T. Canady and later seized marijuana from him at the jail. A warrant search of his residence uncovered marijuana, cocaine, firearms, ammunition, and $3,065 in cash. The State charged Canady with 17 drug, firearm, and bail-jumping counts, and a jury convicted him on 15.
Before trial, the circuit court excluded evidence concerning uncharged controlled buys from Canady because the State had not filed an other-acts motion. During trial, however, the State inadvertently played body-camera footage in which an officer referred to controlled buys. The court denied Canady’s mistrial motion, struck the entire video, and instructed the jury to disregard it. Canady also challenged the prosecutor’s repeated statements that officers found $2,520 on him during the traffic stop, although no witness testified to that precise amount.
The Court’s Holding
The Wisconsin Court of Appeals affirmed the judgment and postconviction order. It agreed that the prosecutor improperly argued a fact outside the record by stating that Canady possessed $2,520 at the traffic stop. But the error was not plain error: the jury was instructed that lawyer argument was not evidence, and trial evidence supported an inference that Canady possessed a substantial amount of similarly bundled cash.
The court also rejected Canady’s ineffective-assistance claim because he did not show prejudice from counsel’s failure to object to the prosecutor’s statements. It further held that the circuit court properly exercised its discretion in denying a mistrial. The controlled-buy reference in the video was unclear, the court reasonably concluded it was not highly prejudicial in context, and curative instructions erased any possible prejudice. Those rejected claims did not justify discretionary reversal in the interest of justice.
Key Takeaways
- A prosecutor’s assertion of a specific cash amount unsupported by trial evidence was improper, but not necessarily plain error.
- Jury instructions that attorney remarks are not evidence can defeat a claim that improper argument deprived a defendant of due process.
- An unclear, inadvertent reference to excluded other-acts evidence may be cured by striking the evidence and instructing the jury to disregard it.
Why It Matters
The decision illustrates the high thresholds for unpreserved prosecutorial-misconduct claims, ineffective-assistance prejudice, and mistrial relief. Even acknowledged impropriety will not result in a new trial absent a showing that it substantially affected the fairness or outcome of the proceedings.