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Ineffective assistance of trial counsel claim fails because “accidental shooting” theory was reasonable and incompatible with strategies defendant urged on appeal

State v. Kenneth L. Hare, Jr., 2013AP1675-CR, 7/29/14 (not recommended for publication); case activity

In this case, the court of appeals rejected Hare’s contentions that his trial counsel was ineffective for failing to request a jury instruction on the law of self-defense and that he was entitled to an evidentiary hearing on a separate IAC claim his trial lawyer’s failure to request a jury instruction on the law of theft.

Hare robbed and shot a man during a drug deal.  His trial lawyer’s goal was to persuade the jury that the shooting was accidental.  On appeal Hare argued that, based on the way the evidence went in, his lawyer nevertheless should have requested a self-defense instruction.  The court of appeals disagreed.  It held that trial counsel’s “accidental shooting” strategy was reasonable and that it was reasonable for trial counsel to conclude that the “accidental shooting” theory of the case was incompatible with a “self-defense” strategy.  Furthermore, trial counsel testified that there was no factual support for a self-defense instruction.  Indeed, according to the court of appeals, Hare’s own testimony did not support such an instruction.  Slip op. ¶¶19-22.

Hare also argued that the trial court should have held a Machner hearing on his claim that trial counsel was ineffective for failing to request a jury instruction on theft.  But the court of appeals held that Hare’s postconviction motion neglected to develop any of the five “w’s” and one “h” that would permit a meaningful assessment of this claim.  See State v. Bentley, 201 Wis. 2d 303, 314, 548 N.W.2d 50 (1996).  On top of that, the court of appeals said, the “intent” requirement in the “theft” instruction would have been incompatible with the “accidental shooting” theory of the case.  Slip op. ¶32.  Thus, no Machner hearing was necessary.

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