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TPR – Effective Assistance of Counsel

State v. Chester C., 2009AP2824, District I, 5/4/10

court of appeals decision (1-judge; not for publication); for Chester C.: Dianne M. Erickson

TPR – Effective Assistance of Counsel
Failure to demonstrate prejudice within the meaning of Strickland dooms this ineffective-assistance claim that trial counsel failed to object to various hearsay statements:

¶7     Other than complaining that his trial lawyer did not object to the hearsay we have recounted, Chester C. does not show why, in Strickland’s words, “there is a reasonable probability that” if his lawyer had objected “the result of the proceeding would have been different,” which, Strickland opines, “is a probability sufficient to undermine confidence in the outcome.” See State v. Byrge, 225 Wis. 2d 702, 724, 594 N.W.2d 388, 397 (Ct. App. 1999) (“A defendant who alleges that counsel was ineffective by failing to take certain steps must show with specificity what the actions, if taken, would have revealed and how they would have altered the outcome of the proceeding.”) (emphasis added), aff’d, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 744. …

The trial court had found that the “presumed inadmissible (hearsay) evidence” did no more than show what was “overwhelmingly and irrefutably proven by stark and competent evidence” anyway (¶6). The court of appeals similarly characterizes the hearsay as “fairly de minimis” (¶7). Of greater note, the court indicates that if hearsay objections had been lodged, the problems “could have been easily cured by the State” having the relevant declarant or eyewitness testify; Chester C.’s failure to do so amounts to a failure to satisfy his burden of showing prejudice (¶7). The details of such proof are necessarily speculative, but it’s fair to assume postconviction counsel must subpoena the declarants and eyewitnesses to show that the asserted deficiencies would not have been cured by proper objection.

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