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Counsel – Ineffective Assistance – Deficient Performance: Failure to Investigate – Potential 3rd-Party Guilt

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue: Whether trial counsel was ineffective for failing to investigate a theory of 3rd-party guilt, in the absence of any evidence linking that party to the crime.


¶31. A trial attorney may select a particular defense from the available alternative defenses. Felton, 110 Wis. 2d at 501-502, 329 N.W.2d at 169. We will uphold the strategic decision, even if it appears in hindsight that another defense would have been more effective, as long as the decision is rationally based on the facts of the case and the applicable law. Id., 110 Wis. 2d at 502-503, 329 N.W.2d at 169.¶32. It was reasonable for Arredondo’s attorney to present the general defense that a third person could have killed Klamann. There was little, if any, evidence linking Garza to the crime. Thus, it is unlikely that a jury would have found that Garza committed it. Under the theory of defense advanced by Arredondo’s lawyer, however, the jury was free to reject the theory that Garza did it, but could still have found that someone other than Arredondo was responsible for the murder. The fact that this strategy failed does not make the attorney’s representation deficient. See State v. Koller, 87 Wis. 2d 253, 264, 274 N.W.2d 651, 657 (1979).

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