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TPR – Jury Instructions: Waiver of Issue; Ineffective Assistance

Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12

court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity

Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.

 ¶6        Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.  Wis. Stat. § 805.13(3); State v. Cockrell, 2007 WI App 217, ¶36, 306 Wis. 2d 52, 741 N.W.2d 267; see also Waukesha Cnty. Dep’t of Soc. Servs. v. C.E.W, 124 Wis. 2d 47, 54, 368 N.W.2d 47 (1985).  “The purpose of the rule [in § 805.13(3)] is to afford the opposing party and the trial court an opportunity to correct the error and to afford appellate review of the grounds for the objection.”  Cockrell, 306 Wis. 2d at 73-74 (quoting Air Wis., Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301, 311, 296 N.W.2d 749 (1980)).

¶7        In this case, Donald failed to object to the jury instructions or verdict on abandonment at the instruction and verdict conference or at any time prior to submission of the instructions and verdict to the jury.  By failing to object, Donald waived his opportunity to challenge the jury instructions and verdict on abandonment.

This failure to object to the instructions and verdict form did not amount to ineffective assistance of counsel: counsel’s performance could not have been deficient, given absence of caselaw relating to whether a separate verdict is required for each period of alleged abandonment:

¶15      While in the future Wisconsin law may clarify whether separate instructions and separate verdicts are required when more than one period of abandonment is alleged, we have found no clear law that would have required this at the time of the jury instruction and verdict conference in this case.  Trial counsel is not required to object and argue points of law that are unsettled.  State v. McMahon, 186 Wis. 2d 68, 84-85, 519 N.W.2d 621 (Ct. App. 1994).  As this court has previously held, “We think ineffective assistance of counsel cases should be limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue.”  Id. at 85; see also State v. Maloney, 2005 WI 74, ¶¶23-30, 281 Wis. 2d 595, 698 N.W.2d 583 (discussing performance standard where area of law is not clear). Although it might have been ideal for Donald’s trial counsel to argue for separate instructions and separate verdicts for the two alleged periods of abandonment, because the law and counsel’s duty regarding this matter were not clear, he was not deficient for failing to do so.  McMahon,186 Wis. 2d at 84.

Perfect is the enemy of the good.” Counsel won’t be held to an impossibly high standard, therefore won’t be held to any standard. (Objection to the instructions “might have been ideal,” but because no one’s performance is expected to be ideal, it therefore can’t have been deficient.) This manner of dumbing-down performance standards seems to have infested ineffective-assistance litigation like Asian carp in the Chicago Sanitary and Ship Canal. Would an interest-of-justice argument overcome the problem? That’s about the only fallback an appellate attorney might have in instances such as this. (Then, too, there is always the danger of being plainly wrong about the settled nature of the underlying principle, e.g., State v. Domke, 2011 WI 95, ¶44, compare discussion, here.) Ultimately, the burden of sharpening the issue must be borne by trial counsel.

On a separate IAC claim, failure to adduce testimony that Donald had engaged in specific activities such as taking his child to the zoo, the court concludes that any deficiency wasn’t prejudicial:

¶20      Considering the significant testimony before the jury related to Donald’s lack of acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of his son, this court cannot conclude that Donald has met his burden of demonstrating a reasonable probability that the jury verdict on this issue would have been any different if his trial counsel had elicited testimony or produced other evidence regarding the occasional activities Donald claims to have done with his son.  The absence of such testimony does not undermine confidence in the outcome, and, therefore, Donald has not shown prejudice.

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