Render and her sister got into a brawl, and Render ended up on the floor on top of her sister, holding her head down to subdue her. Unfortunately, she died. At trial, the State’s doctor testified that her death was caused by manual strangulation. The jury convicted Render, and she filed a claim for ineffective assistance arguing that her trial lawyer should have consulted an independent forensic pathologist to review the medical evidence of her sister’s death.
Along with her postconviction motion, Render submitted a forensic pathologist’s report concluding that her sister actually died from cardiac arrest associated with the stress and physical activity of the altercation. The circuit court denied the motion without a hearing on the theory that the cause of death was irrelevant because the jury was to determine whether Render’s actions constituted or created a substantial and unreasonable risk of death or great bodily harm. ” Opinion ¶8. The court of appeals disagreed.
¶14 Render’s postconviction motion meets “the five ‘w’s’ and one ‘h” test explained in Allen. See id., 274 Wis. 2d 568, ¶23. That is, “who, what, where, when, why, and how.” See id. A motion provides sufficient material facts if it provides the name of the witness (the who), the reason the witness is important (the why and how), and the facts that can be proven (the what, where, and when). See id., ¶24. The Allen test is satisfied as follows: (1) the “who” is Dr. Teas; (2) the “what,” “where” and “when” are that Head [the sister] was yelling, throwing things, and attempting to push over a bookshelf, causing Render to restrain Head and call 911; and (3) the “why” and “how” are that Dr. Teas’s opinion could have been used to establish that Head could have died from sudden cardiac arrest as a result of multiple pre-existing conditions, stress, and the presence of alcohol and marijuana in her system. The report also contradicts the conclusion of strangulation or suffocation, noting the lack of trauma to the relevant portions of Head’s body necessary to cause either injury.
¶15 Contrary to the postconviction court’s legal conclusion, we conclude that the cause of Head’s death was relevant and material to the case. Based on the facts Render presents, which we must take as true, she is entitled to an evidentiary hearing to address her ineffective assistance of counsel claim on both the issues of deficiency and prejudice. See id.