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Counsel wasn’t ineffective at bail jumping trial

State v. John W. Kaczmarek, 2013AP1745-CR, District 4, 7/31/14 (1-judge; ineligible for publication); case activity

Trial counsel wasn’t ineffective for failing to discover before Kaczmarek’s bail jumping trial that the hearing notice mailed to the defendant had been returned, as there was other evidence he’d received notice of the hearing. Nor was counsel ineffective for failing to call certain witnesses, as one may have provided evidence that contradicted Kaczmarek and the other wouldn’t have provided much help to the defense. Finally, counsel wasn’t ineffective for failing to object to an arguably erroneous jury instruction.

Kaczmarek was charged with bail jumping for failing to appear at a calendar call in another case. (¶¶3-5). His defense was that he was unable to arrange transportation to the hearing. (¶6). It became evident during trial that the hearing notice mailed to Kaczmarek was returned. (¶¶7-8). Assuming trial counsel performed deficiently by failing to discover this before trial, there’s no prejudice because there’s evidence Kaczmarek was personally handed a notice of the next hearing at the hearing immediately preceding the calendar call. (¶¶22-26).

Trial counsel subpoenaed Kaczmarek’s roommate to testify Kaczmarek didn’t intentionally disregard the hearing notice, but just couldn’t get to the courthouse. (¶¶11-12, 30). However, counsel didn’t call her because she would have undermined Kaczmarek’s testimony about his impecuniousness. (¶12). This was a reasonable strategic decision, not deficient performance. (¶31). Trial counsel didn’t subpoena Kaczmarek’s landlord, who would have testified Kaczmarek asked for a ride to court or money to pay for a ride. (¶13). Even if counsel was deficient for not calling the landlord, the deficiency wasn’t prejudicial because evidence Kaczmarek asked one person for help doesn’t show he faced an insurmountable obstacle in getting to court (assuming that’s a defense to bail jumping). (¶¶32-37). Also, the fact trial counsel was also a potential witness because he also represented Kaczmarek in the case in which he failed to appear didn’t create a per se conflict of interest that rendered counsel ineffective, as trial counsel’s testimony would have supported only a nullification defense. (¶¶13, 39-41).

Finally, counsel didn’t object to a jury instruction that didn’t include the statement that “intentionally” means having the purpose to commit the charged act. (¶¶9, 27). If this was error it wasn’t prejudicial, as the jury was instructed the state had to prove Kaczmarek knew the terms of his bond and knew his actions didn’t comply with those terms. (¶29).

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