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Partial defense win! COA orders hearing on sec 974.06 ineffective assistance claims

State v. Duanne D. Townsend, 2019AP787, 6/9/20, District 1 (not recommended for publication); case activity (including briefs)

Good news: the court of appeals reversed a circuit court decision denying Townsend’s §974.06 motion without a hearing. Townsend now gets a one on his claims for ineffective assistance of postconviction and trial counsel. Bad news: the court of appeals botched the issue of whether Townsend was denied his 6th Amendment right to determine his own defense under McCoy v. Louisiana, 138 S Ct. 1500 (2018). As noted in our post on McCoy, SCOW needs to square that decision with Wisconsin case law.

A jury convicted Townsend of 1 count of 1st degree homicide and 2 counts of 1st degree attempted homicide and other claims. During opening arguments his trial lawyer told the jury that he would prove that Townsend shot in self defense.  At trial, the witness testified that she heard one of the victims say he had a gun, and she saw that victim lift his shirt as if to flash a gun just before Townsend started shooting. The judge said that based on this testimony he would give the self-defense instruction.

**At this point Townsend discussed whether to testify with his trial lawyer. His lawyer advised against it. The lawyer also said that he wanted to argue that Townsend was high on Ecstasy and shot the three victims recklessly rather than in self-defense. Townsend told his trial lawyer not to present that argument to the jury because he had not taken Ectasy and did not want that defense. He wanted counsel to argue self-defense. (Initial Br. 20) Guess what the trial lawyer did? During closing he (1) did not argue self-defense, (b) told the jury that the witness who saw the threatening victim lift his shirt was “a liar,” and (3) told the jury to find Townsend guilty of reckless homicide because he was high on Ecstasy when he started shooting.

During deliberations, the judge asked Townsend whether he approved of his lawyer’s decision to concede that he shot the victims recklessly. Townsend said “no” he did not agree with that strategy. He wanted the jury to “put in their own decision.” The judge asked whether he wanted the jury “to take any particular jury verdict among the ones that are being offered to them?” Townsend replied: “No, sir, I’m not sure to be honest.” Opinion, ¶26.

Note that due to the closing argument that trial counsel just made, the “particular verdicts being offered” to the jury no longer included “self-defense” or “not guilty.” No good options remained.

In McCoy the government charged the defendant with murdering three family members. He insisted that he did not commit the crimes and told his lawyer not to concede guilty. Because the evidence was overwhelming, and the jury could return the death penalty, his lawyer told the jury that the defendant was guilty in the hopes of gaining mercy at the sentencing stage. The strategy failed. The jury convicted the defendant of 1st degree homicide and returned three death verdicts.

McCoy reversed and held that a lawyer may decide “trial management” issues like which arguments to raise and which objections to make. However, the defendant is master of his own defense. He decides whether or not to plead guilty. Id. at 1508 “When a client expressly  asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” Id. at 1509.

The court of appeals held that McCoy did not apply to Townsend’s case because when asked which verdict he wanted the jury to take he said he wasn’t sure. This supposedly made his case like Florida v. Nixon, 543 U.S. 175 (2004), where counsel tried to discuss trial strategy with Nixon before trial but Nixon was unresponsive. Opinion, ¶38. According to the court of appeals, “it is clear that Townsend wanted to pursue a theory of self-defense” but he “never made an express statement[]” to his trial counsel that he did not want to pursue any other defense strategy.” Opinion, ¶38.  Hence no structural error.

See the yellow text with the asterisks above? The court of appeals’ decision omits this information. In support of his §974.06 motion, Townsend submitted an affidavit stating that he told his lawyer to argue self-defense and not to argue that he shot recklessly while high on drugs. Trial counsel conceded on the record that he defied Townsend’s instructions. The court of appeals never mentions the conversation between Townsend and counsel before closing arguments.  It missed critical facts and hence did not address the actual McCoy issue in this case.

As for the IAC claims, Townsend argued that his postconviction lawyer: (1) missed claims, (2) inadequately briefed claims, and (3) violated a court order regarding the submission of affidavits. On direct appeal the circuit court and the court of appeals denied relief due to (2) and (3). In this decision, the court of appeals holds that those claims and the ineffective assistance of trial counsel claims were adequately pleaded so the circuit court erred in denying a hearing under State v. Allen, 2004 WI 106, 274 Wis. 2d 568, 682 N.W.2d 433.  Opinion, ¶55.

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