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Ineffective assistance claim fails for lack of prejudice; postconviction discovery motion denied for seeking “inconsequential” Facebook records

State v. Steven L. Buckingham, 2017AP1852-CR, 12/4/18, District 1 (not recommended for publication), case activity (including briefs).

When the court of appeals’ dismisses an appellant’s arguments on the grounds that they are “conclusory,” it’s always wise to check the briefs. In this case,  Buckingham filed a fully-developed, well-organized 42-page brief in chief presenting 5 claims of ineffective assistance of trial counsel and a claim for post-conviction discovery.

A jury convicted Buckingham of 1st degree reckless injury, use of a dangerous weapon, because he allegedly shot D.F. at a bus stop on 51st and North in Milwaukee. At trial, Buckingham claimed he didn’t do it, and he challenged the State’s identification evidence.  On appeal, he asserted ineffective assistance of trial counsel because his lawyer: (1) failed to exclude irrelevant evidence about unrelated firearms; (2) failed to call a law enforcement witness who could contradict the victim’s identification of Buckingham; (3) failed to object to a suggestive, unreliable in-court identification; (4) failed to move to strike unresponsive, hearsay testimony linking Buckingham to another suspect; and (6) failed to alert the jury to the lack of corroborative evidence regarding motive. (BIC at 1).

Under Strickland, a claim for ineffective assistance of counsel requires both proof that the lawyer performed deficiently and proof that the deficient performance prejudice the defendant. A failure to satisfy either prong dooms the claim. Here, for reasons specific to this case, the court of appeals denied all 5 claims for lack of prejudice individually and cumulatively. Opinion, ¶¶36-64.

The court of appeals also denied Buckingham’s motion for postconviction discovery. At trial, the State argued that the shooting was the result of a Facebook feud between the victim and Buckingham and that D.F.’s ex girlfriend set up the shooting via Facebook.  The State subpoenaed Facebook records, but claimed that it only received D.F.’s records, not the ex-girlfriend’s records. Buckingham sought postconviction discovery of the ex-girlfriend’s records because they would go to his motive or lack thereof. Opinion, ¶¶66-67.

A defendant has the right to postconviction discovery of evidence that is of consequence to his case.  State v. O’Brien, 223 Wis. 2d 303, 320, 588 N.W.2d 8 (1999). The court of appeals held that the ex-girlfriend’s records were not “of consequence” even though the State had argued motive to the jury.

¶69 . . . As we discussed above, the issue of motive was not of consequence in the outcome of the trial. Although the State made reference to motive and mentioned a Facebook argument, the trial court found that it was only a passing reference. We also conclude that even without the passing reference to an argument on Facebook, there would be no reasonable probability that the outcome of the trial would have been different.

Buckingham also pointed out that the State never turned over Facebook’s response indicating that the ex-girlfriend’s records were not available. The court of appeals pretty much said “so what?” Buckingham had to take the State at its word:

Buckingham argues that if the State received a confirmation from Facebook that no such records were available that would be a record. Buckingham’s argument is conclusory and assumes that Facebook provided such a document. The State has responded that it has turned over all the documents that it received from Facebook
in response to any subpoenas—that response is sufficient. Opinion ¶70 n.10.


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