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Ineffective assistance of counsel — failure to present evidence, ineffective cross examination. Privileges — Confidential informant, § 905.10(3)(b); disclosure of informant

State v. Kendrick L. Lee, 2011AP2126-CR, District 4, 3/28/12; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel — failure to present evidence, ineffective cross examination

In a necessarily fact-intensive discussion that defies quick summary here, the court of appeals concludes Lee’s trial attorney was not ineffective for failing to present two categories of additional evidence or in her cross examination of one of the state’s witnesses. As to one category of evidence Lee claims should have been presented, the court assumes counsel was deficient for not presenting it but finds no prejudice because even if the evidence supported the defense theory,  the “heart” of that theory was “thoroughly undermined” by other evidence presented by the state that Lee does not effectively challenge. (¶¶11-17). As to the other category of evidence, the court concludes trial counsel was not deficient for failing to present that evidence because trial counsel testified Lee did not tell her about it. (¶¶18-20). Finally, counsel was not ineffective in her cross examination of the state’s witness because any failure to explore the matters Lee argues she should have explored did not prejudice the defense. (¶¶21-23).

Privileges — confidential informant, § 905.10; showing necessary to force disclosure of informant

Lee was convicted of possession of cocaine with intent to deliver and keeping a drug house. He brought a postconviction motion requesting the court to conduct an in camera review under Wis. Stat. § 905.10(3)(b) and State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982), because there was a possibility that a confidential informant could give testimony necessary to a fair determination of Lee’s guilt or innocence. The circuit court denied the motion, and the court of appeals affirms because the “minimal” burden under Outlaw and the statute has not been met:

¶30      The analysis of whether an in camera review should be conducted focuses on the alleged offense and how the additional information from the informant might assist an actual, potential defense on the facts of the case.  Here, Lee was found alone in a house for which he had keys and was standing next to a table containing crack cocaine and typical accoutrements associated with cocaine dealing.  Thus, although the informant was in a position to identify, or at least provide additional details regarding, the person who he observed selling cocaine, Lee has failed to make the minimum showing that the informant might be able to give testimony bearing on whether Lee was also dealing cocaine out of the house.

 For an example of a case in which there was a sufficient showing to trigger an in camera review, see State v. Nellessen, 2013 WI App 46, noted here.

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