On Point: D. Ineffective Assistance

State v. Derek J. Copeland, 2011 WI App 28; for Copeland: David Leeper; case activity

Trial court has discretion under § 906.15(3) to order an attorney not to discuss with a sequestered witness who hasn’t yet testified the testimony of other witnesses; this authority extends to barring counsel from providing the sequestered witness with a transcript of prior-witness testimony. The trial court in this instance misperceived a lack of such authority,

State v. Sidney Clark, 2010AP790, District 1, 2/23/11

court of appeals decision (not recommended for publication); for Clark: John A. Pray; case activity

Clark can’t show prejudice from the deficient performance he alleges, therefore he isn’t entitled to a Machner hearing on ineffective assistance of counsel.

¶21      A postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel.  See State v.

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court of appeals decision (1-judge, not for publication); for Daniels: John M. Carroll; case activity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,

district court decision, granting habeas relief on review of unpublished Wis COA opinion (2000AP-2460-CR); on remand from Toliver v. McCaughtry, 539 F.3d 766 (7th Cir.2008) 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,

decision below: unpublished; case activity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.”

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;

State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11

court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.

Ineffective Assistance Claim – Necessity of Motion

Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.

Entrapment – Child Sex Crime with Computer

Challenge to sufficiency of evidence to negate entrapment defense rejected,

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,

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.

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,