This case explores the line between a between a “simple defense” defined as “I was last at the scene of the crime on a date that preceded the crime” versus an “alibi” defense defined as “I was at a different location and unable to get to the scene of the crime on the date it occurred.”
Copeland was convicted of child sexual assault. Before trial, he notified the court that he might introduce alibi evidence, pursuant to §971.23(8). After the State rested, Copeland’s lawyer withdrew the alibi defense and put Copeland on the stand. He testified that on the date of the sexual assault, a very snowy day, he was in a different town 45 minutes away with no means of transportation to the location of the assault. The DA Called this a backdoor effort to present an alibi defense. Copeland insisted it was a simple denial that he had committed the crime. The court, the DA, and defense counsel resolved the matter by agreeing that the court would not give a curative instruction on the issue and defense counsel would not refer to Copeland’s testimony relating to the alibi.
On appeal. Copeland argued that the circuit court misunderstood the law governing alibi defenses and that his counsel bungled the matter. The court of appeals disagreed:
An alibi defense seeks to establish that the accused was at a location other than the alleged crime scene at the time the crime occurred. Shaw, 58 Wis. 2d at 30 (citing Logan v. State, 43 Wis. 2d 128, 135, 168 N.W.2d 171 (1969)). The court in Shaw explained that, based on logic and prior legal authority, an alibi defense is one that “‘involves the physical impossibility of the accused’s guilt,’” and “‘a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all.’” Id. at 31 (quoted source omitted). Slip op. ¶18.
Copeland argues that his testimony lacked an “unequivocal” assertion that he “was in Black River Falls the entire ‘snow’ day.” (Emphasis added.) However, Copeland’s testimony about how he lacked a way to get to the Neillsville residence on December 14, 2005, would have been irrelevant on its face if it was not offered to prove that he lacked a way to get there at any time during the day. To repeat, Copeland’s testimony no doubt lacked any number of elements that might have made it more precise and persuasive, but just because it was tepid did not render it non-alibi testimony. Slip op. ¶22.
As a result, the court of appeals held that the circuit court’s handling of the matter was an appropriate exercise of discretion, and defense counsel was not deficient for failing either to request a mistrial or to purse an alibi defense. Slip op. ¶24.