On Point blog, page 17 of 20
TPR – Jury Instructions: Waiver of Issue; Ineffective Assistance
Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12
court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity
Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.
¶6 Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.
Effective Assistance – OWI-Causing Injury; Cross-Examination; Presentation of Defense
State v. Tijuan L. Walker, 2010AP2587-CR, District 1, 11/29/11
court of appeals decision (not recommended for publication); for Walker: Matthew S. Pinix; case activity
Walker was tried for and convicted of injury by intoxicated use of a vehicle, § 940.25(1)(a), after his car collided with DeAnn Braggs’. A form accompanying the post-accident test kit containing Braggs’ blood (which had little or no alcohol content) noted that the vials of blood were labeled “Walker,
Ineffective Assistance of Counsel
State v. Michael A. Clements, 2010AP1978-CR, District 4, 10/13/11
court of appeals decision (not recommended for publication); for Clements: Steven D. Grunder, SPD, Madison Appellate; case activity
Counsel’s performance not deficient, against claims that he failed to: impeach the complainant with a prior recorded statement; object on hearsay grounds to admissibility of her statement to a school counselor; object to the State’s closing-argument characterization of the sole defense witness;
Ineffective Assistance; Sentencing – Review – Harsh and Excessive
State v. Burt Terrell Johnson, Jr., 2010AP2654-CR, District 1, 9/13/11
court of appeals decision (not recommended for publication); for Johnson: Sara Heinemann Roemaat; case activity
Counsel did not perform deficiently.
- Decision not to make opening statement was reasonable strategy, given that the defense didn’t plan to call any witnesses but instead intended “to put the State to its proof,” ¶21.
- Failure to object to State’s closing argument characterizing what the victim “saw”
Repeated Sexual Assault – Sufficiency of Evidence; Effective Assistance of Counsel
State v. Darrell Lemont Otis, 2010AP589, District 1, 2/1/11
court of appeals decision (3-judge, not recommended for publication); for Otis: Bryan C. Lichstein; case activity; Otis BiC; State Resp.; Reply
Repeated Sexual Assault – Sufficiency of Evidence
Repeated sexual assault, § 948.025(1)(b), requires proof of 3 elements: 3 or more sexual assaults; within a specified period of time;
Counsel: Request for Substitute – Effective Assistance (Disclosure of Communications, et al.); Double Jeopardy: Bail Jumping
State v. Demetrius M. Boyd, 2011 WI App 25; for Boyd: Rebecca Robin Lawnicki; case activity; Boyd BiC; State Resp.; Reply
Request for New Counsel
An indigent defendant doesn’t have the right to counsel of choice, but does have the right to counsel with whom he or she can communicate effectively. When an indigent defendant requests change of counsel,
Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References
State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply
Ineffective Assistance – Inconsistent Defenses
Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.
¶15 First,
Effective Assistance – Rape Shield
State v. Michael James Carter, 2010 WI 40
Wisconsin supreme court decision, reversing unpublished summary order; for Carter: John T. Wasielewski; BiC (State); Resp.; Reply
Counsel made a reasonable tactical decision not to search for admissibility of sexual conduct evidence as an exception to the rape shield law. Therefore, Carter can’t show deficient performance. Separately, this evidence wouldn’t have fallen within an exception anyway,
Counsel – Ineffective Assistance – Deficient Performance – Closing Argument: Inconsistent Theories
State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08
For Westmoreland: Joseph E. Redding
Issue: Whether counsel’s strategic decision to argue inconsistent theories during closing argument (the defendant wasn’t involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient.
Holding:
¶20 We start with the proposition that strategic decisions by a lawyer are virtually invulnerable to second-guessing.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Adduce Expert Testimony on False Confessions
State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke
Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.
Holding:
¶18 Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,