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Failure to investigate confessing co-defendant was not deficient performance

State v. David L. Vickers, 2015AP1631-CR, 6/22/16, District 2 (not recommended for publication); case activity, including briefs

Vickers, who was convicted of misdemeanor bail jumping and retail theft of a wireless router, filed a §974.06 motion claiming ineffective assistance of counsel because his trial lawyer failed to move for suppression of stolen property found in his car and failed to investigate or call as a witness a co-defendant who later confessed to the theft. The court of appeals here affirms the convcition.

A deputy stopped Vickers’ vehicle because its windows were tinted and its headlights weren’t on when they should have been. The deputy took Vickers into custody, discovered that he had an outstanding warrant for theft, spotted a laptop and wireless router in the backseat, learned that the laptop may have been stolen, and seized both. Vickers was not alone in his car. He and his passenger, Wright, gave conflicting information to the police about who owned the electronics. ¶6. Vickers’ trial counsel read the police reports but did not interview Wright or call him as a witness at trial.

According to the court of appeals, trial counsel’s failure to move for suppression of the seized property did not amount to deficient performance because Vickers “never established what trial counsel knew or should have known regarding the search of Vickers’ vehicle, particularly the sequence of events that ultimately led [the deputy] to seize the computer and router.” ¶14.

We will not speculate as to what information [trial counsel] considered when she decided not to file a suppression motion. In short, Vickers has not established that [counsel] had a meritorious basis for making such a motion. Vickers has failed to meet his burden of proof to show that [counsel] was ineffective. See Roberson, 292 Wis. 2d 280, ¶24 (defendant bears the burden on an ineffective assistance claim). ¶16.

As for the failure to investigate, at the hearing on Vickers’ §074.06 motion, Wright testified that he (not Vickers) had stolen the wireless router, but the court of appeals held that this did not prove deficient performance.

Here, while [counsel] knew of Wright, she had no reason to believe that he alone had taken the property. [Counsel] testified that Vickers was unwilling to meet with her and review the case. They only “touched base … before and after court.” In other words, Vickers never told [counsel] that Wright committed the theft. See State v. Nielsen, 2001 WI App 192, ¶23, 247 Wis. 2d 466, 634 N.W.2d 325 (stating that counsel is not deficient for failing to discover information that was available to the defendant but which the defendant did not share with counsel). This was uncontradicted in the record, since Vickers never testified. ¶12 (emphasis supplied).

The court of appeals also agreed with the circuit court that Wright was not a credible witness. He had already been convicted and sentenced for his part in the crime when he testified that he stole the router. “[I]t would be speculative to conclude that Wright would have come forward at the beginning and taken sole responsibility for the theft . . . Thus, [counsel] did not render constitutionally deficient performance in failing to investigate and call him as a witness.” ¶13.

The court of appeals’ reasoning regarding the failure to investigate is troubling. It implies that counsel need not interview or investigate a known (and here, only) witness/co-defendant unless his client tells him why he should do so. That would place a heavy burden on the indigent client. Nielsen does not support that proposition. Rather, Nielsen rejected a defendant’s claim that counsel was ineffective for failing to discover evidence that was used against him  at trial because he knew of the evidence but failed to alert his lawyer about it. Nielsen, ¶23.



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