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Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony from Prior Trial in Different Case

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


¶49. Arredondo further claims that his trial lawyer should have moved to admit pursuant to Wis. Stat. Rule 908.045(1) (declarant unavailable) the transcript of Arredondo’s testimony at the 1995 sexual-assault trial. Arredondo contends that the trial court would have been “required” to admit his prior testimony because the other-acts evidence placed him in the “constitutionally untenable” position of either testifying in the homicide trial about the Kim S. assault and opening himself to cross-examination or foregoing the opportunity to rebut Kim S.’s testimony. We disagree. The criminal process is replete with situations requiring “`the making of difficult judgments'” concerning tensions between constitutional rights. State v. Hall, 103 Wis. 2d 125, 148, 307 N.W.2d 289, 299-300 (1981) (quoted source omitted). It is not unconstitutional to require a defendant to choose between testifying or remaining silent even though that choice affects other criminal charges. See ibid. Arredondo has failed to prove that his trial lawyer provided ineffective assistance.

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