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SCOW reaffirms that trial counsel’s strategic decisions are given deference only if they are reasonable

State v. Jovan T. Mull, 2023 WI 26, 4/4/23, reversing a per curiam decision of the court of appeals; case activity (including briefs)

The supreme court rejects Mull’s claims that his trial lawyer was ineffective at his trial, though it reaffirms that trial counsel’s strategic decisions are not given automatic deference, but are judged for their objective reasonableness under all the circumstances.

At a crowded after-hours house party, “a fight bordering on a brawl erupted” and led to someone firing multiple shots through a closed bedroom door, killing a woman. (¶¶3-4). There were multiple witnesses to the fight, and a number of eyewitness descriptions of the shooter, but their statements were anything but consistent. (¶¶5-7). After following rumors and tips naming three other potential shooters, some witnesses began to point to Mull, and he was eventually charged. (¶¶8-14). A jury convicted him of first-degree reckless homicide. (¶¶15-22).

Mull moved for a new trial, asserting his trial lawyer was ineffective in two ways. First, Mull claimed trial counsel should have presented a third-party perpetrator defense under State v. Denny, 120 Wis. 2d 614, 624, 357 N.W.2d 12 (Ct. App. 1984), and argued to the jury that one of three other people killed the victim. Mull argued that trial counsel could have called four witnesses who would have supported a Denny defense or could have elicited testimony to support the defense from some of the state’s witnesses. Second, Mull argued trial counsel should have moved to strike the hearsay testimony of a state’s witness who said she heard Mull was bragging about shooting the victim. (¶¶25, 27).

At the Machner hearing, trial counsel explained that he considered presenting a Denny defense, but decided against it because he had difficulty locating and interviewing witnesses; instead, and in apparent consultation with Mull, he decided that the credibility issues with, and inconsistent accounts of, the state’s witnesses meant it would be better to argue the state’s case did not amount to proof beyond a reasonable doubt that Mull was the shooter. (¶26). The circuit court found trial counsel to be credible regarding his investigative attempts, and, citing gaps in and limits of the trial evidence that would have supported a Denny defense, concluded trial counsel’s decision not to pursue that defense was reasonable. (¶¶28, 43-47).

The court of appeals disagreed. It held that trial counsel’s performance was objectively unreasonable because even if it was difficult to find certain witnesses, trial counsel could have pursued alternative means of presenting the Denny evidence. (¶29). The state took exception to this, and successfully petitioned for review, arguing that the court of appeals failed to give sufficient deference to trial counsel’s stated strategic reasoning. (¶30). It argued in the supreme court that the cases make it clear a trial attorney’s strategic decisions are “virtually unassailable,” citing, e.g., State v. Breitzman, 2017 WI 100, ¶38, 378 Wis. 2d 431, 904 N.W.2d 93 (“decisions in choosing a trial strategy are to be given great deference.”).

The supreme court reverses the court of appeals. The court holds Mull’s trial counsel wasn’t deficient based on the facts found by the circuit court, though it rejects the state’s implicit suggestion that a trial lawyer’s articulation of a “strategic decision” is a kind of magic spell that precludes trial counsel from being found deficient:

¶48    After accepting the circuit court’s factual findings as not clearly erroneous, we independently determine whether trial counsel’s decision to present a reasonable doubt defense was objectively reasonable and therefore, not deficient. We accordingly examine the record to assess whether trial counsel’s decision falls within the “objectively reasonable range” we discussed in [State v.] Pico, [2018 WI 66,] 382 Wis. 2d 273, ¶19[, 914 N.W.2d 95]. We do so “as if we were encountering [the circumstances] just as trial counsel did, making every effort to ensure our knowledge of the present does not affect how we assess what was known to him at the time.” Id., ¶22. We agree with Mull’s counsel’s statement at oral argument that we “have to look at counsel’s reasoning process. It is not sufficient to just take his explanations at face value.” In determining whether trial counsel’s performance was objectively reasonable, we do not rely on a “blanket policy of deference.” E.g., [State v.] Coleman, [2015 WI App 38,] 362 Wis. 2d 447, ¶20[, 865 N.W.2d 190].

¶49     After reviewing the investigatory materials available to trial counsel at the time he decided on Mull’s defense, we agree with trial counsel’s summary at the Machner hearing [of the inconsistencies and discrepancies and credibility issues with the state’s case]…. The record demonstrates Mull’s representation was reassigned to new trial counsel seven months after the shooting. Combining all of those facts with the lapse of time since witnesses gave strikingly inconsistent statements, we recognize the circumstances trial counsel faced. Pico, 382 Wis. 2d 273, ¶19. We conclude that trial counsel’s trial strategy to cast doubt on the State’s case against Mull was not outside an objectively reasonable range of performance. State v. Kimbrough, 2001 WI App 138, ¶31, 246 Wis. 2d 648, 630 N.W.2d 752. That a different trial strategy may look better in hindsight does not render a reasonable strategy deficient performance. [State v.Felton, 110 Wis. 2d [485,] 502[, 329 N.W.2d 161 (1983)].

Regarding trial counsel’s failure to move to strike hearsay testimony of a state’s witness who said she heard Mull was bragging about shooting the victim, trial counsel testified he didn’t act in response to the statement because his strategy was to attack the foundation for the electronic messages that were the source of this (and other) information. He also didn’t want to call attention to the statement. (¶57). While it was “a close call,” the court holds this was a reasonable decision in light of the fact that the witness had also agreed that Mull’s bragging was a “rumor” and that the judge had been overruling counsel’s foundation objections (apparently meaning counsel could have concluded a motion to strike would be futile and only highlight the statement). (¶¶59-63).

One justice (Dallet) “reluctantly” agrees with the majority’s conclusion regarding the Denny defense given the trial court’s factual findings, but dissents on the hearsay issue, taking issue with the majority’s reconstruction of the circumstances under which the witness referred to Mull’s bragging. (¶79). The dissent shows trial counsel’s prior objections were for different issues and shouldn’t have lead counsel to believe a hearsay objection would have been futile; further, trial counsel compounded that mistake by asking questions about the hearsay statement on cross. And given the statement would be taken as a confession, its admission was prejudicial. (¶¶87-91, 94).

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