On Point blog, page 15 of 32
IAC claims based on Confrontation Clause violation fail due to defendant’s forfeiture by wrongdoing
State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs
Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.
Trial counsel found ineffective; promised defendant would testify, told jury about defendant’s sordid past, failed to elicit impeachment evidence
State v. James Richard Coleman, 2015 WI App 38; case activity (including briefs)
Coleman’s trial lawyer was ineffective for telling the jury Coleman would testify when Coleman had never said he intended to testify; for telling the jury that Coleman had a prior criminal conviction; and for failing to impeach the victim’s allegations by eliciting inconsistent statements she made to other witnesses.
Third trial not a charm
State v. Tyron James Powell, 2014AP1053-CR, District 1, 3/24/15 (not recommended for publication); click here for docket and briefs
After obtaining two mistrials, Powell probably thought he’d get lucky the third time around. Instead, he got a conviction followed by a court of appeals decision that rejected his arguments on impeachment evidence, on the admission of his prior convictions and on his trial lawyer’s ineffectiveness for failing to file a suppression motion.
Voir dire panel “untainted” despite deputy/juror’s assertion that State had enough evidence to convict defendant
State v. Dawn M. Hackel, 2014AP1765-CR, District 4, 3/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)
During voir dire at an OWI trial, a sheriff’s deputy/prospective juror said he had arrested drunk drivers, testified in drunk driving cases, and said that based on his professional training and occupation the State had sufficient evince to convict Hackel, and, therefore, she was guilty as charged. The court of appeals held this in no way tainted the jury panel heading into trial.
Improperly admitted identification evidence doesn’t merit new trial
State v. Joshua Berrios, 2014AP971-CR, District 1, 3/10/15 (not recommended for publication); case activity (including briefs)
A witness named Trevino had been barred pre-trial from identifying Berrios as the person who shot him; but on cross-examination Trevino unexpectedly testified that Berrios was the shooter. This error does not merit a new trial in the interest of justice, nor does it support a claim of ineffective assistance of counsel.
Medical examiner’s reliance on toxicology report of out-of-state lab violated defendant’s right to confrontation
State v. Jason S. VanDyke, 2015 WI App 30; case activity (including briefs)
In this prosecution for reckless homicide by delivery of heroin, VanDyke’s right to confrontation was violated where the medical examiner relied on the toxicology report of an out-of-state drug testing lab to conclude the victim had died of a heroin overdose, the toxicology report was admitted into evidence as part of the autopsy report, but no witness from the lab was called to testify about the toxicology testing.
“I was out of town at time of the crime” is an alibi, not a “simple defense”
State v. Derek J. Copeland, 2014AP929-CR, 3/5/15, District 4 (not recommended for publication); click here for docket and briefs
This case explores the line between a between a “simple defense” defined as “I was last at the scene of the crime on a date that preceded the crime” versus an “alibi” defense defined as “I was at a different location and unable to get to the scene of the crime on the date it occurred.”
Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)
State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.
The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.
Performance not deficient where counsel promised defendant would testify but didn’t call him
State v. Beal, 2014AP1362, 2/24/15, District 1 (not recommended for publication); click here for briefs and docket
During his opening, defense counsel told the jury that Beal would testify to a version of events that contradicted the State’s version, but then he broke that promise. Beal claimed ineffective assistance of trial counsel. The court of appeals and held that Beal didn’t even deserve a hearing on his claim.
Trial counsel held ineffective; DA chastised for taking advantage of deficient performance
State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket
Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.