Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.
Forfeiture-by-wrongdoing, First, the court addressed the “forfeiture-by-wrongdoing” exception to the defendant’s 6th Amendment right to confront the witnesses against him.
For the doctrine to apply, the State must prove by a preponderance of the evidence “that the defendant prevented the witness from testifying” and “that the defendant intended to prevent the witness from testifying.” See State v. Baldwin, 2010 WI App 162, ¶¶37-39, 330 Wis. 2d 500, 794 N.W.2d 769. In addition, the witness must be “[u]navailab[le] for confrontation,” which requires that he or she did not appear at trial and “that the State [made] a ‘good-faith effort’ to produce that [witness] at trial.” See State v. King, 2005 WI App 224, ¶6, 287 Wis. 2d 756, 706 N.W.2d 181 (citation omitted); see also Baldwin, 330 Wis. 2d 500, ¶48 (“Wisconsin Stat. § 908.04(1)(e) requires the proponent of a witness to secure the witness’s appearance by process or other reasonable means. The proponent must make a good-faith effort and exercise due diligence to secure the witness’s presence.”) (citations and internal quotation marks omitted). Slip op.¶25.
According to the court of appeals, the State more than satisfied its burden of showing that Hawthorne’s intentionally prevented 2 witnesses (Grace and Corneil) from testifying, which meant that the circuit court properly admitted their statements to the police at trial.
After listening to testimony from Linden, the investigator from the district attorney’s office who listened to the jailhouse recordings, and the jailhouse recordings themselves, the trial court found that on each call, the caller identified himself as “Royce,” an uncommon name; that each call was made from a location where Hawthorne was housed at the time of the call; and that the caller had a great deal of factual information about the case, including the date of the preliminary hearing. The trial court also found that “Royce” had “a great deal of anger” that was “directed at two potential witnesses in this case,” and that the tone of the conversations was “coercive” and “threatening.” Furthermore, the State presented evidence that two people familiar with Hawthorne’s voice identified the voice in the recordings as Hawthorne’s. Slip op. ¶26.
Because the State met its burden to prove the forfeiture-by-wrongdoing exception to the confrontation clause applies, trial counsel’s performance was not deficient for failing to raise a challenge to the admissibility of the evidence on confrontation clause grounds, and postconviction counsel was not ineffective for failing to raise an issue of trial counsel’s ineffectiveness. SeeStrickland, 466 U.S. at 697; Maloney, 281 Wis. 2d 595, ¶37. Slip op. ¶28.
Forum for ineffective assistance of appellate counsel claims
Hawthorne presented claims of ineffective assistance of postconviction counsel and appellate counsel in his §974.06 motion leading up to this appeal. That was a mistake because ineffective assistance of appellate counsel claims must be presented in a Knight petition filed with the court of appeals. To its credit, the court of appeals addressed the claims as if they had arrived properly wrapped in a Knight petition “in the interest of judicial efficiency.” Slip op. ¶51. Among other things, Hawthorne argued that his appellate counsel (like his trial and postconviction counsel) was ineffective for failing to challenge the admission of Grace’s and Corneil’s statements at trial in violation of the Confrontation Clause. The argument again failed due to the doctrine of forfeiture by wrongdoing. Slip op. ¶¶57-60.
Just goes to show you just how screwy Wisconsin’s postconviction procedure can be. Had Hawthorne done things right, he would have had to pursue the Confrontation Clause/forfeiture by wrongdoing issue in both the circuit court and the court of appeals. And yet the claims overlap and thus aren’t neatly separated.