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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.

How could that be? The standard of review for a sufficiency of evidence favored the state and the conviction. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).  According to the court of appeals, the inferences that could be drawn from the suspicious movements that the security video did show were sufficient to support the verdict. See slip op. ¶12 for a catalog of Klinkenberg’s behaviors and the inferences that could be drawn from them.

Klinkenberg also raised 4 “ineffective assistance of counsel” claims relating to a detective’s identification of him as the suspect in the security video. One is particularly noteworthy. The video showed a man wearing a heavy coat and baseball cap that obscured his face. Klinkenberg asserted that his lawyer failed to investigate a detective’s claim that he recognized Klinkenberg in the video based on contact in a separate criminal investigation. Not true, said Klinkenberg. He had no previous contact with the detective. Check out the court of appeal’s reasons for holding that counsel’s performance on this point was not deficient:

Given the circumstances here, a reasonable attorney could have assumed that Klinkenberg must have been lying or mistaken when he denied having prior contact with Meyers. Otherwise, Meyers’ spontaneous identification of Klinkenberg as the suspect in the security camera footage made no sense. And, as to whether Klinkenberg was in fact lying or instead mistaken, a reasonable attorney could have concluded that it did not matter. Either way, Meyers’ identification had the same evidentiary value and nothing was to be gained by putting Klinkenberg on the stand to deny prior contact with Meyers. Slip op. ¶30.

Yikes! Was there perhaps something to be gained by showing the detective to be a liar? And how does this “a reasonable attorney could assume that his client was lying (without investigating)” reasoning square with the lawyer’s duties of loyalty, diligence and zealous advocacy? The court of appeals may of stepped out of bounds on this one.

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