On Point blog, page 16 of 31
Challenge to postconviction counsel’s representation fails
State v. Larry D. Wright, 2014AP2672, District 1, 11/24/15 (not recommended for publication); case activity (including State’s brief)
The court of appeals rebuffs Wright’s claim that postconviction counsel was ineffective for not raising a claim of ineffective assistance of trial counsel on direct appeal. The court also rejects Wright’s claim that the trial court engaged in improper ex parte communication with the jury during deliberations.
Evidence of retail theft sufficient; ineffective assistance claim fails because lawyer should have assumed client was lying
State v. Daniel Scott Klinkenberg, 2015AP331-CR, District 4, 11/5/15 (1-judge opinion, ineligible for publication); case activity (including briefs)
This is one of those really fact-specific decisions. The centerpiece of the State’s case against Klinkenberg for retail theft was security camera footage that did not show him concealing merchandise of leaving the store with unpurchased merchandise. Yet the jury convicted, and the court of appeals affirmed.
Introduction of evidence of prior TPR, parenting of other children, didn’t entitle parent to new TPR trial
Sauk County DHS v. A.C., 2015AP898 & 2015AP899, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity
A.C.’s trial lawyer was not ineffective for failing to take steps to exclude evidence about the termination of A.C.’s rights to a child in a prior case and about her parenting conduct toward that child and another child.
GAL’s representation of corporation counsel in unrelated matter didn’t create conflict of interest in TPR case
La Crosse County HSD v. C.J.T., 2015AP252, District 4, 10/16/15 (one-judge decision; ineligible for publication); case activity
The fact that the County’s attorney handling this TPR proceeding retained the GAL in the case to represent the her in an unrelated personal injury matter didn’t create a conflict of interest that required a new trial.
References to victim’s truthfulness, parochial schooling don’t merit new trial
State v. Joshua J. Feltz, 2014AP2675-CR, District 1, 9/29/15 (not recommended for publication); case activity (including briefs)
Feltz hasn’t shown his defense was prejudiced when his trial counsel elicited a statement about the truthfulness of the victim. Nor was defense counsel deficient in agreeing to allow the prosecutor to refer in closing to the victim attending a school “where moral guidance is provided.”
Court of appeals rejects multiple challenges to conviction for failure to pay child support
State v. Bradley Wayne Phillips, 2014AP2519-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)
Phillips challenges his conviction for failing to pay child support because: (1) the trial court prohibited testimony from an expert witness about whether Phillips was employable; (2) the postconviction court did not find Phillips’s defense counsel ineffective for allegedly failing to present a plea offer from the State; (3) the postconviction court denied Phillips a Machner hearing on his multiple other allegations of ineffective assistance of counsel; and (4) the postconviction court denied Phillips’ motion for resentencing. The court of appeals rejects all of Phillips’s claims.
Trial counsel’s error in eliciting evidence precluded by limine order wasn’t prejudicial
State v. David D. Hartl, Jr., 2014AP2921-CR, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)
In this OWI case, trial counsel moved to exclude reference to the 911 call about a possible drunk driver, which is what led to police to look for Hartl’s car and ultimately stop him. The state stipulated to excluding this evidence. But on cross-examination of the officer, trial counsel asked questions that led to the officer referring to the call. (¶¶4-5). Hartl argues his lawyer was ineffective for doing this. (¶¶12-14). While it would be “difficult to conclude” trial counsel wasn’t deficient (¶16), it is easy to conclude there was no prejudice.
Counsel wasn’t ineffective at TPR trial for failing to objecting to hearsay, “best interest of child” reference
State v. Kamille M., 2014AP2911, District 1, 6/26/15 (one-judge decision; ineligible for publication); case activity
Trial counsel wasn’t ineffective at Kamille M.’s TPR grounds trial for failing to object to hearsay and to the state’s veiled reference to the best interests of the child during closing arguments.
Freed from the shackles of AEDPA deference, Seventh Circuit finds trial counsel in homicide case ineffective for failing to consider consultation with forensic pathology expert
Oscar C. Thomas v. Marc Clements, 7th Circuit Court of Appeals No. 14-2539, 6/16/15, petition for rehearing en banc denied, 8/7/15
Thomas is entitled to a new trial for the intentional homicide of Joyce Oliver-Thomas, his ex-wife, because his trial lawyer was ineffective for failing to ask a pathology expert to review the conclusions of the state’s forensic pathologist—conclusions on which the prosecutor relied heavily in arguing that Thomas caused Oliver-Thomas’s death intentionally rather than accidentally, as Thomas claimed.
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.