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Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Opening Door to “Haseltine” Evidence, on Tactical Grounds

State v. John R. Maloney, 2004 WI App 141, affirmed2005 WI 74
For Maloney: Lew A. Wasserman

Issue/Holding:

¶18. Maloney complains trial counsel invited a Haseltine violation against him by asking on cross-examination whether Skorlinski believed anything Maloney had told him in the investigation. See State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). We disagree.…

¶21. At the Machner hearing, Boyle explained that his strategy was to criticize Skorlinski’s investigative techniques on this particular case ….

¶23. We cannot improve on the trial court’s ruling. It is significant that the trial court had the opportunity to both see and hear counsel’s presentation and evaluate its purpose in conjunction with counsel’s testimony. See State v. Curtis, 218 Wis. 2d 550, 554, 582 N.W.2d 409 (Ct. App. 1998). Ultimately, the court determined counsel had a reasonable trial strategy-which is virtually unassailable in an ineffective assistance of counsel analysis. See State v. Nielsen, 2001 WI App 192, ¶44, 247 Wis. 2d 466, 634 N.W.2d 325. We see no reason why theHaseltine rule cannot be strategically waived by the party that would normally seek its protections. Trial counsel is not ineffective simply because an otherwise reasonable trial strategy was unsuccessful.

The supreme court affirmed with the following comment:

¶44      Again, we conclude that Maloney has failed to show that his trial counsel’s performance was deficient.  Here, the purpose and effect of the cross-examination was not to impermissibly comment on the credibility of Maloney. Rather, it was to impeach Agent Skorlinksi by portraying him as a good but closed-minded investigator who failed to consider other suspects. As such, the questioning was not violative of the Haseltine rule. State v. Jackson, 187 Wis. 2d 431, 437-38, 523 N.W.2d 126 (Ct. App. 1994). See also State v. Johnson, 2004 WI 94, ¶¶2, 19-24, 26, 273 Wis. 2d 626, 681 N.W.2d 901. The fact that the strategy ultimately proved unsuccessful does not make it any less reasonable for purposes of evaluating Maloney’s claim.

 

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