On Point: b. Prejudice not found

State v. Gary Lee Wayerski, 2019 WI 11, affirming and modifying an unpublished court of appeals decision; case activity (including briefs)

The supreme court overrules Wisconsin’s longstanding test for deciding whether the state has “suppressed” favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), saying the test is unsupported by and contrary to Brady and the U.S. Supreme Court’s decisions applying Brady.

State v. Kimberly C. Thomas, 2018AP304-CR, 1/15/19 (1-judge opinion, ineligible for publication); case activity (including briefs)

On the morning of her final pretrial, Thomas called her lawyer’s office to say that she just got a job, had to start that day, and couldn’t make the conference. When she didn’t show, she was charged and convicted of bail-jumping. She asserted ineffective assistance of counsel because her lawyer didn’t defend her absence. Also, he was a witness to her bail-jumping, so he should have withdrawn before the case went to trial.

State v. Danny L. Wilber, 2016AP260, 12/26/18, District 1 (not recommend for publication); case activity (including briefs)

“This case involves a dual tragedy: the death of one innocent man and the conviction of another.” (Initial Brief at 1). Not one of the many eyewitnesses to this homicide, which occurred during a large house party, saw Wilber shoot Diaz, the deceased. In fact, Diaz was shot in the back of the head and fell face first toward Wilber, not away from him. The State’s theory was that the shot spun Diaz around causing him to fall toward the shooter. It offered no expert to prove that this was possible.

State v. Dedric Earl Hamilton, Jr., 2018AP200-CR, 12/26/18, District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Hamilton of 1st-degree sexual assault of his 8-year old niece. On appeal, he argued that: (1) he was he entitled to a hearing on his postconviction motion in which he alleged, with the support of two experts, that his attorney provided ineffective assistance when she failed either to challenge the voluntariness of his Miranda waiver and subsequent confession or to present evidence calling its reliability into question at trial; and (2) he was entitled to a new trial in the interests of justice.

State v. Sadiq Imani, 2018AP596-CR, District 1, 12/18/18 (not recommended for publication); case activity (including briefs)

Imani doesn’t get a Machner hearing on his ineffective assistance of counsel claim because the court of appeals concludes the record shows counsel’s alleged errors didn’t prejudice Imani.

State v. Tyrus Lee Cooper, 2016AP375, review of a per curiam opinion granted 12/12/2018; case activity (including briefs)

Issues (from the petition for review):

1. When defendant’s counsel has engaged in serious professional misconduct leading up to the trial date affecting defendant’s meaningful participation in his own defense, does that provide a sufficient reason to withdraw a guilty plea prior to sentencing?
2. Did the the circuit court erroneously exercise its discretion when it denied defendant’s motion to withdraw his plea prior to sentencing without an evidentiary record to support substantial prejudice to the State?

State v. Kristy L. Malnory, 2018AP216-CR, District 4, 12/13/18 (one-judge decision; ineligible for publication); case activity (including briefs)

At Malnory’s trial for operating with a prohibited alcohol content, her lawyer failed to object to the admission of the “Blood/Urine Analysis” form completed at the time of her blood draw. She argues this was deficient performance because the form is testimonial, and admitting it without the testimony of the person who completed it violates her confrontation rights. Maybe so, says the court of appeals, but even if that’s true there was no prejudice.

State v. Steven L. Buckingham, 2017AP1852-CR, 12/4/18, District 1 (not recommended for publication), case activity (including briefs).

When the court of appeals’ dismisses an appellant’s arguments on the grounds that they are “conclusory,” it’s always wise to check the briefs. In this case,  Buckingham filed a fully-developed, well-organized 42-page brief in chief presenting 5 claims of ineffective assistance of trial counsel and a claim for post-conviction discovery.

State v. Lorenzo D. Kyles, 2018AP296-Cr, District 1, 11/20/18, (not recommended for publication); case activity (including briefs)

This appears to be Wisconsin’s second application of Lafler v. Cooper, 566 U.S. 156 (2012), which modified the prejudice prong of  Strickland‘s ineffective assistance of counsel test for situations where defense counsel failed to convey a plea offer and thereby caused the defendant to accept  subsequent, potentially less favorable offer. 

State v. Akim A. Brown, 2017AP1332-CR, District 1, 11/6/18 (not recommended for publication); case activity (including briefs)

Brown, charged with second degree sexual assault of L.S., testified their sexual encounter was consensual. He argues trial counsel was ineffective for failing to elicit from him certain testimony that would have helped show the encounter was consensual and for failing to object to testimony about L.S.’s prior consistent statements. The court of appeals concludes counsel’s shortcomings didn’t prejudice Brown’s defense.