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Counsel wasn’t ineffective for failing to call witness at Franks hearing

State v. Lester C. Gilmore, 2013AP2186-CR, District 2, 7/30/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for failing to call a witness at a Franks v. Delaware, 438 U.S. 154 (1978), hearing because counsel was concerned the witness was unpredictable and might undermine his argument and because he was instead able to rely on the witness’s written statement to the police, which itself showed the discrepancy between the witness’s statement and the information in the search warrant affidavit.

Police obtained a warrant based in part on the statement of Griebel, an eyewitness to an alleged burglary, but due to confusing arising from multiple conversations between witnesses, police officers on the scene, and the detective who drafted the warrant, the affidavit in support of the warrant overstated what Griebel actually saw. (¶¶2-6). Gilmore brought a Franks motion at which he relied on the Griebel’s written statement to police, which contradicted parts of the affidavit. Counsel didn’t call Griebel herself as a witness. (¶¶3-6, 8). The court of appeals holds this was not deficient performance:

¶15    At the Franks hearing, Gilmore needed to first prove that the challenged information in the affidavit actually was false. Utilizing Griebel’s statement to do so, rather than calling her as a witness, was a reasonable strategy. As Gilmore has acknowledged through his postconviction/appellate counsel at the Machner hearing and on appeal, respectively, “the [written] statement that [Griebel] gave was helpful” to the defense and “unquestionably supported his assertion that the language in the search warrant affidavit was not completely accurate.”


¶17    The circuit court noted that calling Griebel as a witness at the Franks hearing would have been “a wild card.” We agree; even if trial counsel had spoken to Griebel in advance of the hearing, as Gilmore asserts counsel should have done, counsel would still have had good reason to be concerned about how Griebel would testify in that she was the victim’s mother and one of those who reported Gilmore’s actions to the police. … Furthermore, trial counsel had subpoenaed and questioned the detective and [Officer] Galley, the witnesses most relevant to establishing the second required showing—that the false statement was included in the affidavit “knowingly and intentionally, or with reckless disregard for the truth.”

¶18    …. To prove reckless disregard for the truth, Gilmore needed to show that the detective and/or Galley either “entertained serious doubts as to the truth of the allegations or had obvious reasons to doubt the veracity of the allegations.” [State v.] Anderson, 138 Wis. 2d [451,] 463[, 406 N.W.2d 398 (1987)]; … As evidenced by her testimony at the Machner hearing, Griebel would have been able to add little at the Franks hearing on the question of whether the officers acted with reckless disregard for the truth, while … calling her as a witness at that hearing posed a real risk to Gilmore’s ability to establish the falsity of the challenged information. …We cannot say that trial counsel’s decision to rely on Griebel’s written statement as verified by [Officer] Singh’s testimony fell outside the bounds of reasonable representation.

For the same reasons, even if failure to call Griebel at the Franks hearing was deficient, it wasn’t prejudicial, because she would have added little or nothing to the question of whether the police acted with knowing or reckless disregard for the truth. (¶¶19-22).

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