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Counsel wasn’t ineffective for failing to request certain jury instructions or objecting to prosecutor’s closing

State v. Ryan P. O’Boyle, 2014AP80-CR, District 1, 11/4/14 (not recommended for publication); case activity

O’Boyle’s claims of ineffective assistance of counsel are rejected because trial counsel’s performance wasn’t deficient.

O’Boyle, charged with attempted first degree intentional homicide, raised a self-defense claim. He claimed trial counsel was ineffective for failing to ask for the eyewitness identification instruction, Wis. J.I.—Criminal 141, and the general impeachment instruction, Wis. J.I.—Criminal 330, dealing with evidence of a witness’s character for untruthfulness. But there was no basis for counsel to ask for either instruction. The ID instruction is only relevant when identity is contested, but O’Boyle’s testified he stabbed the victim, Moran, in self-defense. The impeachment instruction was unnecessary because Moran was impeached with a prior conviction and the instruction relevant to that mode of impeachment, Wis. J.I.—Criminal 325, was given to the jury. (¶¶22-23).

He also claimed that trial counsel was ineffective for failing to object to statements the prosecutor made during his initial and rebuttal closing arguments, but the court of appeals holds the remarks during the initial closing were “fair comments based on the evidence and reasonable inferences from the evidence” (¶29) and the remark made during rebuttal was “a fair comment based on the evidence and a fair response to the defense closing.”(¶30).

The court also rejects O’Boyle’s additional claims that a photo array used by the police didn’t follow proper procedures, that the trial court erred in admitting hearsay, and that the state amended the information without leave of the trial court. On the first issue, “all of the problems O’Boyle raises with the photo array were explained away at the postconviction hearing….” (¶26). As to the evidentiary ruling, the trial court properly admitted the testimony because it wasn’t hearsay. (¶¶34-35). Finally, the trial court took O’Boyle’s plea to the amended information, and thus implicitly granted leave for the state to amend the information. (¶¶37-38).

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