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Ineffective assistance of counsel — inadequate presentation of defense of misidentification

State v. William M. Grunwald, 2012AP2531-CR, District 4, 8/8/13; court of appeals decision (not recommended for publication); case activity

Grunwald was charged with reckless endangerment for kicking Stevens, who was lying on the ground after being beaten by Houghton. Grunwald’s defense at trial was that he was mistakenly identified by eyewitnesses to the incident. After his conviction he alleged trial counsel was ineffective in his presentation of the defense, but the court of appeals rejects his claims. Specifically:

1) Counsel was not ineffective in cross-examining Kruse, one of the eyewitnesses, even though his cross resulted in Kruse making an in-court identification of Grunwald as one of the individuals who kicked the victim, something Kruse was unable to do on direct-examination. Assuming trial counsel was deficient, there was no prejudice given the in-court identification of Grunwald by the officer who arrived at the scene and arrested Grunwald after Kruse pointed him out as one of the perpetrators. (¶¶11-14).

2) Counsel was not ineffective for failing to object to four leading questions that the State asked another eyewitness on direct-examination after the witness testified that she saw only one person attack the victim. The failure to object was not deficient because counsel reasonably concluded an objection would only lead the prosecutor to rephrase the questions and elicit the same response. Nor was the failure prejudicial, as Grunwald did not show the judge would have sustained the objections. (¶¶15-18).

3) Counsel was not ineffective for failing to do more to explain how a small amount of blood belonging to the victim landed on Grunwald’s shoe. Counsel pursued a reasonable strategy by arguing that the small amount of blood was inconsistent with guilt because there would have been more blood on Grunwald’s shoe if he was the person who kicked the victim. (¶¶23-25).

4) Counsel was not ineffective for failing to present four witnesses in Grunwald’s defense. Counsel made reasonable efforts to locate two of the witnesses but could not find them. Further, trial counsel made the reasonable strategic decision not to present the two remaining witnesses after he talked to one of them because that witness, speaking for herself and the fourth witness, told counsel that they did not remember what happened and would not be willing to testify. (¶¶26-31).

Finally, Grunwald argued that trial counsel was ineffective for failing to request Wis JI—Criminal 141, the jury instruction concerning identification. The court assumes trial counsel should have asked for the instruction, and it even takes the trouble to note (¶22 n.4) that identification was “the central issue at trial” and that courts are concerned about the problem of false identification. Nonetheless, the court declines to decide the claim because Grunwald failed to develop an argument as to how the outcome of the trial would have been different had counsel requested the instruction and the court given it. (¶¶19-22).

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