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Counsel wasn’t ineffective for waiving prelim and not moving to suppress statement

State v. Isaiah N. Triggs, 2014AP204-CR, District 1, 10/28/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for waiving a preliminary hearing in Triggs’s homicide prosecution or for failing to move to suppress Triggs’s confession. Further, the circuit court’s plea colloquy with Triggs was not defective and the circuit court didn’t erroneously exercise its sentencing discretion.

Triggs was interrogated by the police three times. The first time he denied any involvement with the death of the victim. The second time he asked for a lawyer and the interview was terminated. He later requested another interview and, after initially saying he still wanted a lawyer present, decided to proceed without one and ultimately confessed to being the shooter. (¶¶2-4). Triggs ultimately pled guilty to first degree reckless homicide without first challenging his statement, and the court of appeals rejects his claim that trial counsel was ineffective for failing to move to suppress his third statement because it was admissible under Edwards v. Arizona, 451 U.S. 477 (1981):

¶21      …. As the trial court correctly determined, the record … shows that Triggs knowingly and intelligently waived his right to have an attorney present:

[The interviewing detective’s] report shows that [Triggs] initially contemplated speaking with detectives with a lawyer present, but when the detectives informed him they could not accommodate his request for an attorney that evening because it was a Sunday evening, [Triggs] waived his right to have an attorney present so that he could speak to detectives at that time. The report further shows that the detectives escorted … [Triggs] to an interview room only after he indicated that he wished to speak to the detectives without a lawyer present. Once in the interview room, when [Triggs] again mentioned a lawyer, the detectives told him they could not proceed with the interview at that time if he wished to have an attorney present. Once again, [Triggs] indicated that he wanted to speak to the detectives without a lawyer present. The detectives then read [Triggs] his Miranda rights, which [Triggs] stated he understood, and, again, told the detectives that he wished to speak to them without an attorney present.

Everything in the record shows that the defendant was informed of his Miranda rights and repeatedly waived them, particularly with regard to the incriminating statements he made to the detectives on February 19, 2012. [Triggs] has not come forward with an affidavit challenging the factual circumstances surrounding his confession as described in … [the] report, and therefore, the court fails to perceive upon what factual basis and/or legal basis trial counsel should have pursued a motion to suppress his statements….

(Emphasis in trial court’s decision.)

¶22      Thus, because Triggs initiated further discussions with the police, and knowingly and intelligently waived his right to have counsel present, see Edwards, 451 U.S. at 485, 486 n.9, a motion to suppress Triggs’ incriminating statement would have been denied. Consequently, counsel’s performance was neither deficient nor prejudicial….

The court also rejects the claim that trial counsel ineffective for waiving the preliminary hearing because Triggs hasn’t established he was prejudiced by that waiver. (¶¶15-16).

The court of appeals also concludes that:

  • the circuit court’s plea colloquy adequately explained the elements of the offense (¶¶6-9, 23-25, 27);
  • there was a factual basis for the plea to reckless homicide, which is a lesser-included offense of the initial charge of first degree intentional homicide, State v. Harrell, 182 Wis. 2d 408, 419, 513 N.W.2d 676 (Ct. App. 1994) (factual basis requirement is met if a factual basis is shown “for either the offense to which the plea is offered or to a more serious charge reasonably related to the offense to which the plea is offered”) (¶26); and
  • the circuit court properly exercised its sentencing discretion (¶¶29-30).
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