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State v. Victor T. Jackson, 2009AP851-CR, District I, 4/6/10

court of appeals decision (3-judge; not recommended for publication); for Jackson: Byron C. Lichstein; BiC; Resp.; Reply

Hearsay, Child Sexual Assault, Residual Exception
Statements by youthful sex assault complainants admissible under residual hearsay exception, court rejecting idea that it’s thereby allowing exception to swallow general rule against hearsay admissibility; confrontation objection forfeited).

Counsel – Strategic Basis for Failing to Adduce Alibi Witness
Counsel’s failure to have potential alibi witnesses testify was reasonable strategy, where those witnesses were unable to recall defendant’s whereabouts during large portion of pertinent time frame.

Counsel – Opening Statement
Counsel’s failure to have testify witness mentioned in opening statement: neither deficient performance nor prejudicial, court stressing that counsel’s made “informed” choice in that witness’s testimony would have opened door to damaging, other inadmissible evidence.

Majority makes broad pronouncement: “It is not deficient performance per se for counsel to promise something in opening statements, but fail to deliver on that promise during the defense case. Turner v. Williams, 35 F.3d 872, 903-04 (4th Cir. 1994).” Dissent, relying on Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988), would hold that “trial counsel performed deficiently when he promised the jury it would hear testimony from Dr. Kotkin without first seeking a ruling from the trial court on an issue that trial counsel should have known would be decided against him or, at the very least, would be a difficult argument to win based on existing case law and statutes.” It matters through which lens the problem is viewed. The court has previously indicated “that strategic decisions by a lawyer are virtually invulnerable to second-guessing,” State v. Paul Dwayne Westmoreland, 2008 WI App 15, ¶20, and so the question becomes: are we closely scrutinizing the informed nature of the strategy, or are we merely skipping to the impervious-to-scrutiny part? The majority shrugs its shoulders at the former, the dissent doesn’t, and they ultimately reach different conclusions.

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