On Point blog, page 18 of 20
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Revocation of Extended Supervision: Alternatives to Revocation
State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
For Walker: Amelia L. Bizzaro
Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.
Holding:
¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests.
Counsel – Ineffective Assistance – (Cross-)Examination of Witness with Respect to Immunity Grant
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding: Counsel’s cross-examination of state’s witness testifying under a grant of immunity was adequate where it revealed that the witness’s motivation for testifying was a desire to receive leniency on his pending charges, ¶22; and, also where any confusion about the grant of immunity was clarified by the trial court’s accurate admonition to the jury on the matter,
Counsel – Ineffective Assistance – Examination of Witness – Open-Ended Question
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶39 Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis.
Counsel – Ineffective Assistance – Deficient Performance: Failure to Litigate Suppression Motion in Preference to Accepting Plea Offer
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
Milanes: Joan M. Boyd
Issue/Holding: Counsel’s failure to litigate a (Miranda) suppression motion was not deficient where the issue turned purely on a credibility dispute between defendant and the detective and pursuit of the motion would have required rejecting a favorable offer, ¶¶15-16.
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Failure to Pursue NGI Defense
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding: Failure to pursue an NGI defense wasn’t deficient:
¶19 … The evidence in support of Milanes’ claim is remarkably weak; the strongest piece of evidence is the report of his psychiatric expert, which contains a conclusory statement that Milanes meets the statutory requirements. We will not discuss this issue in detail,
Counsel – Ineffective Assistance – Deficient Performance — Failure to Research Law – “Unsettled” or Murky Law
State v. John R. Maloney, 2005 WI 74, affirming 2004 WI App 141, but nonetheless retaining jurisdiction pending resolution of other issues
For Maloney: Lew A. Wasserman
Issue/Holding: Failure to move to suppress evidence based on asserted violation of SCR 20:4.2 does not support deficient performance, given that applicability of this Rule was not settled:
¶23 The split of authorities described above is important in considering whether Maloney’s trial counsel was ineffective in failing to challenge the admissibility of the videotape evidence based on an alleged violation of SCR 20:4.2.
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Impeachment
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding: “Second, Arredondo claims that his trial attorney failed to impeach Garza’s testimony with false statements Garza made to the police. This claim fails on both the deficiency and prejudice prongs. Arredondo cannot show prejudice because Garza admitted on direct-examination that he lied to the police….,” ¶33.
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Opening Door to “Haseltine” Evidence, on Tactical Grounds
State v. John R. Maloney, 2004 WI App 141, affirmed, 2005 WI 74
For Maloney: Lew A. Wasserman
Issue/Holding:
¶18. Maloney complains trial counsel invited a Haseltine violation against him by asking on cross-examination whether Skorlinski believed anything Maloney had told him in the investigation. See State v. Haseltine, 120 Wis. 2d 92,
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony from Prior Trial in Different Case
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶49. Arredondo further claims that his trial lawyer should have moved to admit pursuant to Wis. Stat. Rule 908.045(1) (declarant unavailable) the transcript of Arredondo’s testimony at the 1995 sexual-assault trial. Arredondo contends that the trial court would have been “required” to admit his prior testimony because the other-acts evidence placed him in the “constitutionally untenable”
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony: Waiver of and Revocation of Waiver
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶27. Arredondo argues that his trial lawyer was ineffective for advising him not to testify. We disagree. At the Machner hearing, Arredondo’s attorney testified that he advised Arredondo not to testify for two main, albeit related, reasons. First, the lawyer testified that he believed Arredondo would make a poor witness because Arredondo told him inconsistent details about the night Klamann was killed,