On Point blog, page 25 of 33
Preservation of Issue: Motion in Limine; Ineffective Assistance: Client’s Failure to Reveal Information to Counsel; Harmless Error Review: Cf. IAC-Prejudice; Evidence: § 905.05 Marital Privilege & 3rd-Party
State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity
Preservation of Issue – Motion in Limine
Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.
Ineffective Assistance of Counsel – Voluntary Intoxication; Ineffective Assistance – State’s Closing Argument
State v. Richard L. Daniels, 2010AP1715-CR, District 3, 2/23/11
court of appeals decision (1-judge, not for publication); for Daniels: John M. Carroll; case activity
Ineffective Assistance of Counsel – Voluntary Intoxication
Voluntary intoxication requires that the defendant establish utter lack of capability to form the requisite intent; because Daniels’ version couldn’t make this showing, counsel’s failure to pursue the defense wasn’t deficient performance.
¶12 It was reasonable for Daniels’ trial counsel to view Daniels’ version of events as inconsistent with a voluntary intoxication defense,
Stephen Toliver v. McCaughtry, E.D. Wis. No. 02-C-1123
district court decision, granting habeas relief on review of unpublished Wis COA opinion (2000AP-2460-CR); on remand from Toliver v. McCaughtry, 539 F.3d 766 (7th Cir.2008)
for Toliver: Brian P. Mullins; Toliver BiC; Wis. Resp.; Reply
Habeas – Ineffective Assistance – Deficient Performance
Counsel performed deficiently in failing to call two potential witnesses who would have supported Toliver’s theory of defense that,
State v. David W. Domke, No. 2009AP2422-CR, review granted, 2/8/11
decision below: unpublished; case activity
Issues (formulated by On Point):
Whether Domke was denied effective assistance of counsel by trial counsel’s: failure to object to inadmissible hearsay in the form of a social worker’s testimony reciting the complainant’s recitation of the alleged sexual assaults; producing, without first interviewing her, the complainant’s mother as a defense witness who proceeded to testify that she believed the complainant “100 percent.”
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,
Habeas Review – Ineffective Assistance of Counsel – Deference Must Be Given State Court Determination
Harrington v. Richter, USSC No. 09-587, 1/19/11, reversing grant of habeas relief, in 578 F. 3d 944
The 9th Circuit failed to give sufficient deference to the state court’s determination that Richter received adequate representation, requiring reversal of it grant of AEDPA-2254 habeas relief. The principal thrust of the opinion relates to the standard of review, both as to AEDPA habeas generally and ineffective-assistance claims more particularly.
Habeas Review – Guilty Plea – Ineffective Assistance
Premo v. Moore, USSC No. 09-659, 1/19/11, vacating grant of habeas relief, in 574 F.3d 1092
Moore, who admitted brutalizing the victim and shooting him in the temple, accepted a plea bargain on advice of counsel: he pleaded guilty to felony-murder, and received the minimum allowable sentence, thus avoiding a capital-offense charge. He raised a postconviction challenge to counsel’s failure to seek suppression of his statement to the police,
Expert Opinion – “Jensen” Testimony – Failure to Object; Comment on Another Witness’s Truthfulness – Failure to Object;Ineffective Assistance – Prejudice
State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10
court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply
Expert Opinion – “Jensen” Testimony – Failure to Object
An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s,
Effective Assistance – Plea Advice; Newly Discovered Evidence; Counsel – Sanction
State v. Charles A. Bouc, 2010AP180, District 2, 12/22/10
court of appeals decision (3-judge, not recommended for publication); for Bouc: Adam Walsh; case activity; Bouc BiC; State Resp.; Reply
Effective Assistance – Plea Advice
Counsel did not fall short of normative performance standards, where he weighed with his client the pros and cons of admissibility of potentially crucial evidence;