On Point blog, page 65 of 71
Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Generally
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue/Holding: A claim that the prosecutor represented the defendant in a prior case may be raised in a pretrial motion to disqualify the prosecutor, which requires a showing that “the subject matter of the two representations are ‘substantially related,’” ¶15, quoting State v. Tkacz, 2002 WI App 281,
Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Pretrial Motion to Disqualify, Timeliness
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue: Whether a motion to disqualify a prosecutor because of representation of defendant in a prior case, brought immediately before jury selection, may be deemed waived on timeliness grounds.
Holding:
¶24 We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely.
Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Postconviction Motion to Disqualify – Actual Conflict Required
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue/Holding:
¶33 The circuit court here accepted the district attorney’s testimony that he did not remember any conversation with Medina during the prior representation. It also found that the district attorney did not refer to any information at sentencing from the prior representation that was not a matter of public record.
Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Generally
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding: A trial court may, but is not required to, override a defendant’s waiver of the right to conflict-free representation, and in this instance the trial court properly questioned the defendant and ascertained that he was knowingly and voluntarily waiving that right:
¶13 Contrary to Dion’s assertion,
Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Amounts to Waiver of Claim of Deficient Performance
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding:
¶15 Dion contends that he was denied effective assistance of counsel because his counsel’s law firm also represented his co-defendant brother Douglas. … While there is no Wisconsin case law directly on point, the State cites federal cases holding that a defendant cannot assert ineffective assistance of counsel based on a conflict of interest when the defendant validly waived the right to conflict-free representation.
Counsel – Ineffective Assistance – (Cross-)Examination of Witness with Respect to Immunity Grant
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding: Counsel’s cross-examination of state’s witness testifying under a grant of immunity was adequate where it revealed that the witness’s motivation for testifying was a desire to receive leniency on his pending charges, ¶22; and, also where any confusion about the grant of immunity was clarified by the trial court’s accurate admonition to the jury on the matter,
Counsel – Ineffective Assistance – Examination of Witness – Open-Ended Question
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶39 Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis.
Counsel – Ineffective Assistance – Deficient Performance: Failure to Litigate Suppression Motion in Preference to Accepting Plea Offer
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
Milanes: Joan M. Boyd
Issue/Holding: Counsel’s failure to litigate a (Miranda) suppression motion was not deficient where the issue turned purely on a credibility dispute between defendant and the detective and pursuit of the motion would have required rejecting a favorable offer, ¶¶15-16.
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation — Alibi Defense
State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding
Issue/Holding:
¶50 Cooks, as the trial court found, provided Barth with the names of alibi witnesses and Barth had Cooks testify to his alibi. However, Barth failed to investigate the potential alibi witnesses and argue Cooks’ alibi to the jury. Barth failed to do so despite the fact that a corroborated alibi clearly would have reinforced Barth’s misidentification theory of defense.
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Failure to Pursue NGI Defense
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding: Failure to pursue an NGI defense wasn’t deficient:
¶19 … The evidence in support of Milanes’ claim is remarkably weak; the strongest piece of evidence is the report of his psychiatric expert, which contains a conclusory statement that Milanes meets the statutory requirements. We will not discuss this issue in detail,