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Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References

State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply

Ineffective Assistance – Inconsistent Defenses

Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.

¶15      First, “it is not uncommon for lawyers to argue inconsistent defenses.”  Westmoreland, 2008 WI App 15, ¶21, 307 Wis. 2d at 440, 744 N.W.2d at 925.  See also State v. McDonald, 144 Wis. 2d 531, 533, 424 N.W.2d 411, 412 (1988) (Defendant “entered pleas of not guilty and not guilty by reason of mental disease or defect,” contending that he did not kill the victim but was not responsible if he did.); State v. Nelis, 2007 WI 58, ¶20, 300 Wis. 2d 415, 424, 733 N.W.2d 619, 623 (“Nelis argued at trial that the evidence did not show that he and Diane S. had sexual intercourse on the night at issue.  He further argued that, even if they did have sexual intercourse that night, it was consensual.”); Brown v. Dixon, 891 F.2d 490, 494–495 (4th Cir. 1989) (Inconsistent defenses “that Brown either did not commit the murders or did so while drunk” was not ineffective assistance of counsel.).

¶16      Second, given Davis’s assertion to the police officer who rode with him to the hospital that he was “hit in the back” by attackers when he was outside the house, coupled with the evidence that he was at risk of being killed because he stole from drug dealers, the argument that he was stabbed by them might have persuaded one or more jurors that the State had not carried its beyond-a-reasonable-doubt burden despite:  (1) what Dekoria Marks told Walls, her brother, and Detective Chicks, and (2) what her brother and Walls said that Davis said at the house.  Simply put, in order to get any conviction, the State had to persuade all the jurors that Dekoria Marks did what it said she did.

Moroever, prejudice can’t be shown from this strategic decision, given that the jury returned a lesser-offense verdict, ¶18.

Ineffective Assistance – “McMorris” Evidence

Counsel’s failure to seek admissibility of “McMorris” evidence – prior specific instances of violence within defendant’s knowledge – doesn’t support an ineffective-assistance claim, where Marks failed to allege what specific instances should have been adduced, or that her reliance on self-defense was based on those instances, ¶19. (“These flaws are fatal to her argument.  See State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343, 349–350 (Ct. App. 1994) [A defendant who alleges that his lawyer was ineffective because the lawyer was deficient in his or her representation must show what the lawyer should have done and how it would have accomplished the result the defendant now seeks.].”)

Ineffective Assistance – Prejudice

Counsel’s failure to obtain  “rule of completeness” admissibility of redacted portions of Marks’ recorded interrogation wasn’t prejudicial, because the point sought to be established was otherwise before the jury: “Given what the jury had already heard about Dekoria Marks’s tumultuous relationship with Davis, Dekoria Marks has not established Strickland prejudice—that is, she has not shown that using Wis. Stat. Rule 901.07’s rule-of-completeness was necessary to ‘correct[] a distorted impression’ created by the redacted version.  See Anderson, 230 Wis. 2d at 144, 600 N.W.2d at 925,” ¶22.

Counsel – Appellate Procedure – Candor

Appellate counsel is cautioned as to the SCR 20:3.3 duty of candor to the tribunal, for omitting from his brief a remark highly relevant (and apparently deleterious) to his argument, ¶25 n. 12 (noting that counsel “was obligated to disclose in his main brief that the trial court told the jury that Dekoria Marks’s interview with Detective Chicks was redacted and that he was obligated to disclose in his main brief that the trial court told the jury that Dekoria Marks’s interview with Detective Chicks was redacted”; citing, Wisconsin Natural Gas Co. v. Gabe’s Constr. Co., Inc., 220 Wis. 2d 14, 19 n.3, 582 N.W.2d 118, 120 n.3 (Ct. App. 1998).

Strong medicine, a public rebuke in a (presumed to-be) published decision. Indeed, the issues discussed by the court are so mundane that none appears to warrant publication. Although the court’s goal is necessarily opaque, it might be assumed that at least one objective in publishing an otherwise routine discussion is to convey a message about how the court expects arguments to be presented. Whether or not the assumption is correct, the sting remains. And even if the misstep here seems to be far less apparent than that in Wis. Nat’l. Gas (which involved misleading “spin” and “overt misstatement,” id.), any appellate counsel would be wise to absorb the message. A nice question might be presented as to the court’s authority, in effect, to preempt the OLR process and issue what amounts to a public reprimand for an ethical violation. However nice the question, though, it is not one you would want to have to press on your own behalf, is it?

Appellate Procedure – Briefs – Record References

We only address the matters for which Dekoria Marks gives Record references.  See Grothe v. Valley Coatings, Inc.,2000 WI App 240, ¶6, 239 Wis. 2d 406, 411, 620 N.W.2d 463, 465 (We will not consider arguments without appropriate references to the Record.)

¶25 n. 13.

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