On Point: 1. Deficient performance

State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity

Ineffective Assistance of Counsel – DNA Search Warrant 

Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:

¶10      Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here,

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court of appeals decision (not recommended for publication); for Clements: Steven D. Grunder, SPD, Madison Appellate; case activity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;

State v. Aaron Deal, 2010AP1804-CR, District 1, 9/20/11 

court of appeals decision (not recommended for publication); for Deal: James A. Rebholz; case activity

Counsel’s refusal to argue to the jury that it should return a guilty verdict on felony murder, submitted as a lesser offense option of first-degree intentional homicide, wasn’t deficient in light of the defendant’s insistence on an all-or-nothing strategy.

¶8        At the Machner hearing,

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court of appeals decision (not recommended for publication); for Johnson: Sara Heinemann Roemaat; case activity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.

1. 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.
2. Failure to object to State’s closing argument characterizing what the victim “saw”

State v. Stephen R. Jones, 2011AP864-CR, District 3, 8/30/11

court of appeals decision (1-judge, not for publication; for Jones: Brian P. Dimmer; case activity)

Failure to move to strike juror wasn’t deficient performance. Juror’s public support of election of the presiding judge and the district attorney (who was not herself prosecuting this case) didn’t establish a significant relationship with either individual to establish “objective bias.” State v.

Joseph Muniz v. Smith, 6th Cir. No. 09-2324, 7/29/11

sixth circuit court of appeal decision

Habeas – Ineffective Assistance – Sleeping Counsel 

The fact that counsel has slept through a portion of trial does not, alone, amount to denial of counsel so as to require relief under United States v. Cronic, 466 U.S. 648 (1984), rather than inquiry into the prejudice component of  Strickland v.

State v. Steven A. Avery, 2011 WI App 124 (recommended for publication); for Avery: Martha K. Askins, Suzanne L. Hagopian, SPD, Madison Appellate; case activity

Search Warrant – Execution – Reasonableness 

Warrant-based search of Avery’s property was a reasonable continuation of the original search 3 days earlier.

General statement:

¶18      Generally, searches are subject to the “one warrant, one search” rule.  

MC Winston v. Boatwright, 7th Cir No. 10-1156, 8/19/11

seventh circuit court of appeals decision, denying habeas relief on review of unpublished decision in 2003AP3412 and 2005AP1255

Habeas – Jury Selection – Ineffective Assistance – Defense Counsel’s Discriminatory Use of Peremptories

In a nutshell, this case presents the question whether the constitutional rights of the petitioner, MC Winston,

State v. Jeremy M. Bootz, 2010AP2795-CR, District 2, 7/27/11

court of appeals decision (1-judge, not for publication); for Bootz: Craig S. Powell; case activity

Counsel “had no obligation to object to” the testimony of “a bona fide rebuttal witness,” hence didn’t perform deficiently.

The court summarizes ground-rules relative to rebuttal witnesses, overarching principles being: “A bona fide rebuttal witness is a witness whose testimony only becomes necessary and appropriate after the defense presents its case-in-reply. 

State v. Keith A. Stich, 2010AP2849-CR, District 2, 6/22/11

court of appeals decision (1-judge, not for publication); for Stich: Andrew Joseph Burgoyne; case activity

Stich’s failure to heed an officer’s instruction to stop – instead, Stich walked away and into his house and encouraged his companion Lidbloom to do likewise – established the crime of obstructing. The police were investigating an earlier incident, and “Stich’s actions, which delayed the deputies’ ability to question Lidbloom,