State v. Jimmie C. Grayer, 2010AP1749-CR, District 1, 6/1/11
Postconviction denial of ineffective assistance of counsel challenge without Machner hearing upheld.
1. Although counsel performed deficiently by inaccurately telling the jury in his opening statement that Grayer’s in-custody had not been recorded by the police, Grayer wasn’t prejudiced by the deficiency.
¶13 In order to get an evidentiary hearing, Grayer must allege facts, which if true, show prejudice. He cannot rely solely on the conclusory assumption that his trial lawyer probably lost credibility with the jury. See Allen, 2004 WI 106, ¶26, 274 Wis. 2d at 587, 682 N.W.2d at 443–444. He does not submit any facts supporting his conclusory assumption. As the State points out, the “jury had no reason to believe this [incorrect statement] was anything other than an honest mistake.” Significantly, as the State also tells us, the defense lawyer’s misstatement was not “called … to the jury’s attention at any point.” Grayer does not point out how the misstatement made the verdict “unreliable” or “unfair.” See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) (We may reject undeveloped arguments that are supported by only general statements.).
Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988), distinguished. “Anderson held that the trial lawyer’s conduct was ‘prejudicial as a matter of law’ because the ‘promise [the lawyer made during opening] was dramatic, and the indicated testimony strikingly significant.’ Id., 858 F.2d at 17, 19.” (¶14) Here, the statement didn’t leave any substantive promise unfulfilled: Grayer didn’t dispute any portion of the recording. In effect, the attorney was wrong, but only as to a mere detail. The court also reminds that federal decisions aren’t binding, so Anderson wouldn’t have to be followed anyway, ¶15, citing State v. Beauchamp, 2010 WI App 42, ¶17, 324 Wis. 2d 162, 177–178, 781 N.W.2d 254, 261, aff’d, 2011 WI 27.
2. Failure to object to State’s closing argument that Grayer’s act may have been intentional, on charge of reckless homicide, wasn’t prejudicial where theory of defense was self-defense, which requires intentional use of potentially deadly force, ¶¶16-17.
3. Failure to object to State’s closing rebuttal argument that Grayer’s theory of self-defense amounted to a claim in favor of “a hunting license for the youth of Milwaukee” wasn’t deficient. The argument fairly responded to the defense closing, ¶19.
4. Failure to request a lesser offense instruction on 2nd degree reckless injury “was a jointly-decided strategic decision” between counsel and client, therefore can’t support a claim of ineffective assistance, ¶¶20-21.