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Counsel – Ineffective Assistance – Deficient Performance: Failure to Investigate – Potential Alibi Witnesses

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

Issue/Holding: Failure to locate and present the testimony of a potential alibi witness wasn’t deficient given counsel’s testimony that his investigator couldn’t locate the witness, along with Arredondo’s failure to convince the court that the investigator had been informed where the witness lived or could be located. ¶36.

Note: For authority all but saying that failure to file notice of alibi, a procedural prerequisite to adducing alibi evidence, is deficient performance as matter of law, at least where alibi is suggested by facts, see Clinkscale v. Carter, 375 F.3d 430 (6th Cir. 2004):

With respect to the first prong of Strickland, the state relies upon the conclusion of the district court (and the magistrate) that Clinkscale failed to present sufficient evidence to rebut the presumption that his attorneys’ failure to file a timely alibi notice was part of a “sound trial strategy.” Strickland, 466 U.S. at 489. What that conclusion fails to recognize, however, is that even if Clinkscale’s attorneys subjectively believed that failing to file an alibi notice on time was in some way strategic – which is doubtful(8) – such a “strategy” cannot, under the circumstances presented in this case, be considered objectively “sound,” id., or “reasonable,” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (“The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.”).At least where – as here – alibi is a critical aspect of a defendant’s defense, there is nothing reasonable about failing to file an alibi notice within the time prescribed by the applicable rules when such failure risks wholesale exclusion of the defense. In this case, there would have been nothing to lose, yet everything to gain, from filing the alibi notice in compliance with Rule 12.1. Such a course of action would have preserved Clinskcale’s right to assert an alibi defense, but at the same time would not have tied him into asserting such a defense at trial. SeeWilliams v. Florida, 399 U.S. 78, 84 (1970) (“Nothing in [a rule such as Rule 12.1] requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.”). Therefore, based upon our consideration of counsel’s overall performance, and in view of all the facts in the record, we find that Clinkscale has met his burden, under the first prong of Strickland, of establishing that the performance of his trial counsel fell below an objective standard of reasonableness.


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