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Trial counsel was not ineffective for failing to argue officers in resisting arrest case acted without lawful authority

State v. Andrew K. Valiquette, 2013AP909-CR, District 4, 12/19/13; court of appeals decision (1-judge; ineligible for publication); case activity

Valiquette, convicted of resisting arrest, argues the police lacked lawful authority when they moved to pat him down for weapons, and asserts trial counsel’s failure to pursue that defense was based on a misunderstanding of the applicable law. The court of appeals disagrees, concluding instead that trial counsel’s testimony indicates she made a strategic decision to focus on the issue of whether Valiquette resisted instead of whether the police were acting with lawful authority. (¶¶21-23). In light of the standards applicable to an officer’s authority to conduct a pat down for weapons and the facts of this case, counsel’s decision was not deficient. (¶¶24-25).

Valiquette’s related arguments fare no better. His claim that the standard jury instruction on resisting was deficient for not fully explaining to the jury the meaning of “lawful authority” is forfeited. Trial counsel didn’t object to the standard instruction and Valiquette didn’t allege she was ineffective for failing to object. (¶¶16-17). And while Valiquette gave testimony contradicting the police officers’ version of events, there is credible evidence to support the jury’s finding that Valiquette knew police were acting with lawful authority and that he resisted an officer. Thus, the evidence is sufficient to support the verdict. (¶¶9-15). Finally, Valliquette is not entitled to a new trial in the interest of justice because the real controversy–the reasonableness of the police officers’ conduct in general and their lawful authority in particular–was fully tried:

¶30      Valiquette does not argue that the jury was precluded from considering any important information bearing on those issues specifically, or his guilt or innocence as a general matter. Rather, he maintains that the jury was not given sufficient opportunity to weigh the reasonableness of his and Officer Gonzalez’s actions. However, the jury heard both Valiquette’s and Officer Gonzalez’s testimony regarding what transpired on the night in question. Valiquette does not point to any particular ruling by the court that precluded the jury from considering his point of view. Thus, I am simply not persuaded that this case is one of the exceptional situations where this court should grant a new trial in the interest of justice. See Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990).

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