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Court of appeals affirms order for new trial based on ineffective assistance of trial counsel

State v. Donald Ray Michael, 2012AP2738-CR, District 1, 6/10/14 (not recommended for publication); case activity

Michael is entitled to a new trial on reckless injury and felon in possession of a firearm charges because trial counsel provided ineffective assistance at trial by failing to introduce evidence from the police department’s computer automated dispatch (CAD) report and failing to present testimony from an eyewitness to the incident.

Michael maintained that he was not the shooter in a drive-by shooting incident, testifying that at the time he was on his way to the hospital to get treated for a gunshot wound he had suffered earlier that day. He also testified he decided not to go to the hospital because while he was en route—which was within ten minutes of the drive-by shooting—he heard police suspected he was involved in the drive-by shooting. But McCrary, a police detective, told the jury they didn’t identify Michael as a suspect for several hours. The state also presented the testimony of Davis, an eyewitness to the shooting who identified Michael as the shooter. (¶¶2-6).

Postconviction, Michael alleged trial counsel was ineffective for failing to present: 1) entries from the CAD report showing that, contrary to McCrary’s testimony, Michael was identified as a suspect within ten minutes of the shooting; and 2) the testimony of Young, another eyewitness, who told police Michael wasn’t the shooter. (¶¶7-10). The circuit court found trial counsel was ineffective. (¶11). The court of appeals affirms, concluding that counsel (who acknowledged his failures “were oversights, not strategic decisions” (¶16)) performed deficiently and that Michael was prejudiced:

¶17      Trial counsel’s failure to introduce evidence that would have enhanced the defendant’s credibility and undermined the credibility of both an officer on the scene and an eyewitness was deficient performance in this case. Counsel was aware of the discrepancy between the CAD report and McCrary’s testimony, as well as the potentially exculpatory nature of Young’s testimony. The failure to introduce the CAD report and to investigate Young—both of which were available to him—fell below an objective standard of reasonableness. See State v. Jeannie M.P., 2005 WI App 183, ¶25, 286 Wis. 2d 721, 703 N.W.2d 694. When a case turns on witness credibility, trial counsel has a duty to investigate and present impeaching evidence when counsel knows or should have known of its existence.  Id., ¶11.


¶19      The central question in this case—whether Michael was the shooter—hinged on witness credibility. Trial counsel had available information which would have enhanced the defendant’s credibility and cast doubt on the credibility of two other witnesses. However, the jury did not hear this information. The CAD report not only corroborates Michael’s testimony that he was on his way to the hospital at the time of the shooting, it also undermines McCrary’s testimony that Michael was not a suspect until hours after the incident. The CAD report could have been used to impeach McCrary. Young’s testimony would have directly contradicted the testimony of the State’s only eyewitness, perhaps its key witness—Davis. Multiple other witnesses testified based on what Davis told them. Young’s testimony that Michael was not even at the scene of the shooting, let alone the actual shooter, would have presented the jury with a crucial credibility choice that it did not have at trial. We agree with the postconviction court that trial counsel’s failure to present two key pieces of evidence, without strategic reasons, undermines our confidence in the outcome.

Judge Fine dissents, saying Michael hasn’t satisfied the prejudice standard. (¶¶21-27).

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