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Ineffective Assistance of Counsel – Voir Dire – Denial of Postconviction Challenge without Hearing

State v. Joseph J. Johnson, 2011AP806-CR, District 4, 11/3/11

court of appeals decision (1-judge, not for publication); for Johnson: Rebecca J. Vahle; case activity

Trial counsel’s failure to move to strike several jurors for cause didn’t require Machner hearing:

¶12      In State v. Traylor, 170 Wis. 2d 393, 399-400, 489 N.W.2d 626 (Ct. App. 1992), this court held that a defendant’s trial counsel was deficient for failing to ask appropriate follow-up questions of jurors who had admitted bias.  We stated that “[c]ounsel should have asked the appropriate follow-up questions to assess whether the juror would follow the instructions of the court and, if counsel failed to receive a satisfactory answer, should have moved to reject the juror for cause.”  Id.  In the present case, after the jurors indicated a possible source of bias, each was asked an appropriate follow-up question, and each provided a satisfactory answer indicating their ability and willingness to fairly judge the case.  According to Traylor, nothing more was required.  Because the record conclusively demonstrates that Johnson was not entitled to relief as a result of his trial counsel’s voir dire of these jurors, the court properly denied this portion of Johnson’s claim without a Machner hearing.

Although failure to move to strike biased jurors, and consequential “misuse” of peremptories, can amount to ineffective assistance, prejudice requires showing that an “objectionable or incompetent” juror was impaneled. In other words, if the panel was fair and impartial, then it can’t be claimed that the defendant was wrongly required to use peremptories. Johnson can’t show that any juror on the trial panel was biased, and his motion was therefore properly denied without a hearing, ¶¶14-15.

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