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Counsel – Ineffective Assistance – Deficient Performance – Closing Argument: Inconsistent Theories

State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08
For Westmoreland: Joseph E. Redding

Issue: Whether counsel’s strategic decision to argue inconsistent theories during closing argument (the defendant wasn’t involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient.


¶20      We start with the proposition that strategic decisions by a lawyer are virtually invulnerable to second-guessing. Strickland, 466 U.S. at 690. As the trial court recognized, we must analyze the change of tack by Westmoreland’s lawyer in her summation against the evidence as it existed at that time, not as she might have hoped she could have accomplished when she gave her opening statement. At that point, sticking with the all-or-nothing approach set out in her opening statement would have been largely suicidal. Thus, we agree with the trial court’s conclusion in its decision denying Westmoreland’s motion for postconviction relief “that it was a reasonable trial strategy for counsel to argue an alternative defense based on reckless conduct.”¶21      Westmoreland points to two Wisconsin cases that hold that a lawyer is not ineffective for not arguing inconsistent theories.  See State v. Kimbrough, 2001 WI App 138, ¶¶1, 32, 246 Wis. 2d 648, 653, 665, 630 N.W.2d 752, 754, 760; State v. Eckert, 203 Wis. 2d 497, 510, 553 N.W.2d 539, 544 (Ct. App. 1996) (decision to not request a lesser-included-crime instruction). But this is a different matter from saying that a lawyer is ineffective for doing so. AsStrickland reminds us, there is a “wide range of professionally competent assistance,” id., 466 U.S. at 690, and the bar is not very high, see Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (lawyer need not be a Clarence Darrow to survive an ineffectiveness contention). Indeed, it is not uncommon for lawyers to argue inconsistent defenses. See, e.g., 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.”).

¶22      What Westmoreland’s trial lawyer did here was within the “wide range of professionally competent assistance,” see Strickland, 466 U.S. at 690, and, given the overwhelming strength of the State’s case, was “strategy” as a matter of law. Further, as the trial court also concluded, given the strength of the State’s case, persisting with the original all-or-nothing approach would not have led reasonable jurors to conclude that the State had not proven Westmoreland guilty beyond a reasonable doubt. Thus, as a matter of law there was also no Strickland“prejudice,” that is, the change of tack by Westmoreland’s lawyer in her closing argument did not “undermine confidence” in the trial’s outcome.   SeeStrickland, 466 U.S. at 694. Accordingly, we affirm.[1]

 [1] Westmoreland also contends that his trial lawyer was wrong when she prefaced her change of tack in her closing argument by telling the jury that “the law requires me to make another argument in this instance” because the law did not “require[]” her to make an argument inconsistent with her contention that Westmoreland was not involved in the shootings. This is a non-starter because the lawyer’s preface helped rather than hurt Westmoreland—it reduced, rather than enhanced, whatever prejudice might have flowed as a result of the lawyer’s giving the jury an alternative, albeit inconsistent, argument, especially since the trial court had already instructed the jury that it could consider the lesser-included crime of first-degree reckless homicide. As we have already seen, Westmoreland does not challenge the propriety of that instruction or the effectiveness of his trial lawyer for asking for it. Thus, we do not discuss it. See State v. Allen, 2004 WI 106, ¶26 n.8, 274 Wis. 2d 568, 587 n.8, 682 N.W.2d 433, 442 n.8 (issue not argued is waived).

In her opening statement, counsel “told the jury flat out that Westmoreland was not involved’ in any of the shootings,” ¶11; but she “turned tack in her summation to argue that he was guilty of the lesser-included crime of first-degree reckless homicide, on which the trial court without objection and in accord with Westmoreland’s request had already instructed the jury,” ¶13. As the block quote above indicates, the court of appeals perceives no deficiency in counsel’s strategic tacking. But to a large extent that apparent change was based on the decision, altogether unchallenged, to submit a lesser offense option, the strategic reasonableness of which is therefore a given; and, hewing to an all-or-nothing position would have been, in the court’s choice terminology, “suicidal.”

What, then, is the big deal; seems like a mine-run case: why publish it? Quite possibly because of the court’s pernicious observation, “strategic decisions by a lawyer are virtually invulnerable to second-guessing.” You can bet that statement will be cited as boilerplate in future IAC claims. Indeed, the only authority cited by the court for placing postconviction counsel in that straitjacket, is the seminal Strickland, more about which momentarily. Oddly, the court blithely cites Kimbrough without acknowledging that in that instance it rejectedcounsel’s proffered strategy – counsel’s “subjective” reason for pursuing a chosen course of action, the court said, weren’t decisive; instead, the question was whether it was objectively reasonable. Of course, in that instance, counsel concededly made a mistake in pursuing an all-or-nothing strategy and had actually meant to try for a lesser offense. But that result creates a potentially intolerable tension with the court’s statement now that it’s next to impossible to second-guess strategy (you can second-guess if you want to affirm rather than vacate the conviction). It has long been settled that counsel’s strategizing is tested by whether it was rationally based on the facts of the case and the law, e.g.,  State v. Felton, 110 Wis. 2d 485, 502-503, 329 N.W.2d 161 (1983). Compare, United States ex rel. Hampton v. Leibach, 347 F.3d 219, 246 (7th Cir. 2003) (“an attorney’s decisions are not immune from examination simply because they are deemed tactical”; question is whether the tactic “was objectively reasonable”). We are now, if Westmoreland takes hold, some distance removed from those more gimlet-eyed views of counsel’s performance.

Now to the test in Strickland, which was expressed by the Court this way: “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 466 U.S. at 690-91. After thorough investigation. Decidedly different stress, no? Application of that formulation to these facts would have brought theWestmoreland court to the same place undoubtedly, but note the difference is almost too obvious to require spelling out: before immunity from second-guessing there first must be “thorough investigation.” The court has accurately recited the test before, in State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, ¶15 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690”); and State v. Dale H. Chu, 2002 WI App  98, ¶52  (“counsel’s strategic choices, made after thorough investigation of the law and facts, are virtually unchallengeable. See Strickland, 466 U.S. at 690-91”). Maybe the court’s present, rough summary isn’t meant to change anything. Perhaps it is a mistake to read too much (or anything at all) into the court’s shift in rhetoric; but it would be wise to keep in mind that the focus must be on the quality of the investigation of both facts and law, before leaping to the conclusion that counsel’s decision-making is impervious to review.

Returning to this case: Westmoreland presented no witnesses. He had no real defense. The decision might be read as supporting the idea that no strategy would have changed the outcome, and in that sense a holding of no prejudice might have been the preferred outcome. Compare, Conner v. McBride, 375 F3d 643 (7th Cir. 2004) (failure to seek lesser offense instruction was deficient, because “the trial court would have been legally obligated to so instruct the jury,” but was nonetheless non-prejudicial because the evidence was so overwhelming he would have been convicted as charged anyway). Remember, too, at least as a tangential aside, that the potentially thorny question of submitting a lesser offense option (who gets to choose, counsel or client?) wasn’t raised.

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