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Counsel was not ineffective for not calling a witness he thought was unpredictable and “less than credible”

State v. Alejandro Rodriguez, 2013AP695-CR, District 2, 9/25/13; court of appeals decision (1-judge; ineligible for publication); case activity

Trial counsel was not ineffective for deciding not to call Rodriguez’s girlfriend as a witness. Counsel advised Rodriguez he thought it was not in Rodriguez’s interests to have her testify because her recantations made her credibility suspect, she refused to talk to counsel before trial, and Rodriguez had a no-contact order pertaining to her, and her testimony might suggest he violated that order. (¶¶2-5, 8-9). The court of appeals concludes trial counsel had reasonable strategic reasons not to call her: “Trial counsel recognized that the girlfriend was an unpredictable and potentially harmful witness and believed it was strategically more sound, both for the trial in this case and in relation to the pending felony charge, not to call her as a witness. We certainly cannot conclude that counsel’s performance fell ‘outside the wide range of professionally competent assistance.’ Strickland [v. Washington], 466 U.S. [668,] 690 [(1984)]. From our view, counsel’s decision made perfect sense.” (¶11). In addition, trial counsel’s decision not to call her (or any other witnesses) did not leave the state’s evidence unrebutted, for counsel’s cross-examination of the state’s witnesses challenged the veracity and accuracy of the victim’s testimony. (¶12).

Two appellate practice notes:

1. Make sure the record includes a copy of the transcript of the postconviction hearing, if you had one. Both parties repeatedly referred to and cited the transcript of the postconviction hearing, though that document was missing from the record. Ordinarily that would mean the court assumes that every fact essential to sustain the circuit court’s ruling is substantiated by the missing part of the record because it is the appellant’s duty to assure that the record is complete. State Bank of Hartland v. Arndt, 129 Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986); Suburban State Bank v. Squires, 145 Wis. 2d 445, 451, 427 N.W.2d 393 (Ct. App. 1988). Here, however, both parties include the identical twenty pages of the purported postconviction hearing transcript in their respective appendices, so the court considers those pages even though they are not part of the record.(¶2 n.3).

2. Cite unpublished opinions for persuasive value only if they were decided after July 1, 2009. “In this appeal, both parties have cited unpublished cases inappropriately. We direct counsel for both parties to Wis. Stat. § 809.23(3), and particularly the ‘on or after July 1, 2009’ rule.” (¶13 n.5).

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