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Performance not deficient where counsel promised defendant would testify but didn’t call him

State v. Beal, 2014AP1362, 2/24/15, District 1 (not recommended for publication); click here for briefs and docket

During his opening, defense counsel told the jury that Beal would testify to a version of events that contradicted the State’s version, but then he broke that promise. Beal claimed ineffective assistance of trial counsel. The court of appeals and held that Beal didn’t even deserve a hearing on his claim.

According to the court of appeals, to show deficient performance, Beal had to at least allege that (1) he never told his lawyer that he wanted to testify or (2) he told his lawyer he did not intend to to testify. See State v. Krancki, 2014 WI App 80, 355 Wis. 2d 503, 851 N.W.2d 824. Instead, Beal’s motion papers alleged that trial counsel told postconviction counsel that he never intended to call Beal because he knew Beal planned to testify about irrelevant details. That wasn’t enough, said the court of appeals. Slip op. ¶16.  The focus should be on what Beal intended at opening statements. At that moment, the pleadings suggest, Beal intended to testify, so counsel did not perform deficiently in telling the jury that he would testify.

Beal’s appellate lawyer distinguished Krancki as a case where the defendant initially said he wanted to testify and then changed his mind. Beal says his trial lawyer never intended to call him to testify. Thus, he never should have promised the jury that he would testify.  The court of appeals response:  trial counsel can’t waive a defendant’s right to testify. Ummm. If Beal made his desire to testify known, and never wavered, then isn’t that kind of what trial counsel in effect did?

In fact, Judge Kessler’s concurring opinion stressed that at the time opening statements were presented defense counsel had a reasonable factual basis for concluding that Beal would insist on testifying. Seems like another decision in search of a petition for review.

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