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Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony: Waiver of and Revocation of Waiver

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


¶27. Arredondo argues that his trial lawyer was ineffective for advising him not to testify. We disagree. At the Machner hearing, Arredondo’s attorney testified that he advised Arredondo not to testify for two main, albeit related, reasons. First, the lawyer testified that he believed Arredondo would make a poor witness because Arredondo told him inconsistent details about the night Klamann was killed, and that he would be discredited on cross-examination because he told the police inconsistent things. Second, Arredondo’s attorney testified that if Arredondo testified he believed that an incriminating statement Arredondo gave to a detective that had been suppressed prior to trial would have been admissible to impeach Arredondo. See Harris v. New York, 401 U.S. 222, 225-226 (1971) (statements obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1936), can be used for impeachment purposes). This strategy was professionally reasonable. See State v. Felton, 110 Wis. 2d 485, 502-503, 329 N.W.2d 161, 169 (1983) (we will uphold counsel’s strategic decision if it was rationally based on the facts of the case and the law).

Nor was counsel’s performance deficient with respect to revoking this waiver: before resting, counsel confirmed that Arredondo did not in fact want to testify, ¶29. And, given the trial court’s subsequent finding “that Arredondo’s belated desire to testify was an attempt to manipulate the system[,] … Arredondo’s attorney was not required to help Arredondo pursue that ‘strategy.’ See Nix v. Whiteside, 475 U.S. 157, 168-169 (1986) (attorney’s duty to prevent fraud upon the court).” Id.

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