State v. Allen K. Umentum, 2011AP2622-CR. District 3, 5/1/12
court of appeals decision (1-judge, not for publication); for Umentum: Roberta A. Heckes; case activity
Under a local, Brown County “standing order,” all in-custody defendants appearing at jury trial were required, without particularized demonstration of need, to wear a non-visible stun belt. The courthouse had no screening checkpoints, and any defendant was entitled to relief from the order “for good cause shown.” Umentum, who was made to wear a stun belt on account of this order, argues that his rights were violated by lack of particularized need. The State counters that under State v. Miller, 2011 WI App 34, ¶1, 331 Wis. 2d 732, 797 N.W.2d 528, “a circuit court need not consider the necessity of a restraint that is not visible to the jury.” However, because trial counsel didn’t object to the belt, the issue must be raised in the context of ineffective assistance, and the court concludes that he can’t show prejudice:
¶16 In this case, we conclude that, irrespective of whether Umentum’s counsel was deficient for failing to object to the standing order, Umentum was not prejudiced by any deficiency. Umentum argues he was prejudiced by counsel’s failure to object to the use of the stun belt because the belt interfered with his right to testify.[4] Specifically, he argues the stun belt compromised his credibility before the jury because it changed his demeanor, negatively affected his memory, negatively affected his ability to speak up, and caused him to “wet himself” during his testimony.
¶17 Umentum’s argument, however, is completely undermined by his postconviction testimony and the circuit court’s postconviction findings. At the postconviction hearing, Umentum testified he did not believe the officer would use the stun belt. The circuit court relied on this testimony when it determined the stun belt did not make Umentum nervous. As to Umentum’s contention that wearing the belt affected his memory, he testified at the postconviction hearing, “[A]ll the facts I testified to is what I believe what happened. I don’t think there would be any difference … to the facts.” Finally, although Umentum argues the belt made him so nervous that he “wet himself” during his testimony, the circuit court rejected that assertion, reasoning it was four feet away from Umentum and “would have noticed.” Umentum has not demonstrated “a probability sufficient to undermine confidence in the outcome.” See id. at 694.
