State v. Jimmie C. Grayer, 2010AP1749-CR, District 1, 6/1/11
court of appeals decision (not recommended for publication); for Grayer: Bridget E. Boyle; case activity
Postconviction denial of ineffective assistance of counsel challenge without Machner hearing upheld.
1. Although counsel performed deficiently by inaccurately telling the jury in his opening statement that Grayer’s in-custody had not been recorded by the police, Grayer wasn’t prejudiced by the deficiency.
¶13 In order to get an evidentiary hearing, Grayer must allege facts, which if true, show prejudice. He cannot rely solely on the conclusory assumption that his trial lawyer probably lost credibility with the jury. See Allen, 2004 WI 106, ¶26, 274 Wis. 2d at 587, 682 N.W.2d at 443–444. He does not submit any facts supporting his conclusory assumption. As the State points out, the “jury had no reason to believe this [incorrect statement] was anything other than an honest mistake.” Significantly, as the State also tells us, the defense lawyer’s misstatement was not “called … to the jury’s attention at any point.” Grayer does not point out how the misstatement made the verdict “unreliable” or “unfair.” See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) (We may reject undeveloped arguments that are supported by only general statements.).
Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988), distinguished. “Anderson held that the trial lawyer’s conduct was ‘prejudicial as a matter of law’ because the ‘promise [the lawyer made during opening] was dramatic, and the indicated testimony strikingly significant.’ Id., 858 F.2d at 17, 19.” (¶14) Here, the statement didn’t leave any substantive promise unfulfilled: Grayer didn’t dispute any portion of the recording. In effect, the attorney was wrong, but only as to a mere detail. The court also reminds that federal decisions aren’t binding, so Anderson wouldn’t have to be followed anyway, ¶15, citing State v. Beauchamp, 2010 WI App 42, ¶17, 324 Wis. 2d 162, 177–178, 781 N.W.2d 254, 261, aff’d, 2011 WI 27.
2. Failure to object to State’s closing argument that Grayer’s act may have been intentional, on charge of reckless homicide, wasn’t prejudicial where theory of defense was self-defense, which requires intentional use of potentially deadly force, ¶¶16-17.
3. Failure to object to State’s closing rebuttal argument that Grayer’s theory of self-defense amounted to a claim in favor of “a hunting license for the youth of Milwaukee” wasn’t deficient. The argument fairly responded to the defense closing, ¶19.
4. Failure to request a lesser offense instruction on 2nd degree reckless injury “was a jointly-decided strategic decision” between counsel and client, therefore can’t support a claim of ineffective assistance, ¶¶20-21.
While I have not reviewed the briefs and record, and therefore cannot comment on the final result, the Court in this case, and in other recent published decisions, e.g., State v. Christopher Jones; State v. Anthony Prineas, continues to rely on a standard for resulting prejudice on an IAC claim that the United States Supreme Court rejected as contrary to controlling Supreme Court authority over 10 years ago.
Specifically, the Court here relies on State v. Smith, 207 Wis. 2d 258, 276, 558 N.W.2d 379, 386 (1997), for the proposition that resulting prejudice under the Strickland standard “is not . . . an outcome-determinative test” and that “the touchstone of the prejudice component is ‘whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’”
Smith relied on the Supreme Court’s decision in Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), for that proposition. However, in Williams v. Taylor, 529 U.S. 362, 391–99 (2000), the U.S. Supreme Court stated that it was error to read Lockhart as modifying or supplanting the “reasonable probability of a different result” standard set down in Strickland v. Washington and concluded that the application of Lockhart’s fundamental unfairness or unreliability analysis in the manner stated in Smith and used by the Court of Appeals here was contrary to law.
The Court of Appeals’ continued insistence on a legal standard rejected by the U.S. Supreme Court certainly helps me in my federal habeas practice, since is removes the deference otherwise required for the state court decision under AEDPA. I have won at least three federal habeas petitions for exactly this reason. However, it no doubt hurts many more defendants who are denied a fair evaluation of their claims under the legally required standard.