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Ineffective Assistance – Failure to Impeach

State v. Ralph S. Stewart, 2011AP1424-CR, District 1, 5/15/12

court of appeals decision (not recommended for publication); for Stewart: Byron C. Lichstein; case activity

Counsel’s failure to impeach police officers, with their own reported statements, was deficient:

¶17      While matters of trial strategy are generally left to counsel’s professional judgment, counsel may be found ineffective if the strategy was objectively unreasonable.  See State v. Felton, 110 Wis. 2d 485, 501-03, 329 N.W.2d 161 (1983).  Here, we conclude that Glover’s “keep it as basic as possible” strategy is objectively unreasonable.  The strategy, as implemented, involved Sims’s testimony as to what Bublitz reported to him.  Sims was not questioned about Luna’s statement, nor was Luna confronted about the inconsistency between his trial testimony and his statement to Sims.  Because the jury heard both Bublitz and Luna testify that the driver dropped the gun, it was incumbent upon trial counsel to put forth all evidence undermining the possibility that Stewart was the driver.  Doing so would have further challenged Bublitz’s credibility.

¶18      Put another way, the question of whether Stewart dropped the gun centered around the credibility of the officers, particularly Bublitz.  The State even acknowledged in its closing argument that “this case comes down to Officer Bublitz.”  The State further requested that the jury find Stewart guilty based specifically on Bublitz’s testimony, stating:  “And based upon the testimony of Officer Bublitz, I ask that you find the defendant guilty as charged of possessing the firearm.”  Any information that would serve to undermine Bublitz’s testimony was essential to an effective defense.  Glover acknowledged the importance of challenging Bublitz’s testimony by stating that his main goal at trial was to impeach Bublitz.  Glover unreasonably failed to use significant available evidence that would have furthered this goal.  See State v. Thiel, 2003 WI 111, ¶¶46, 50, 264 Wis. 2d 571, 665 N.W.2d 305 (concluding that “it was objectively unreasonable for [defendant]’s counsel not to pursue further evidence to impeach” the alleged victim).

¶19      Glover’s concern for the appearance of police incompetence is also objectively unreasonable because Glover had already introduced evidence of police inconsistencies.  Bublitz’s testimony that Stewart was the driver and Luna’s testimony that the driver dropped the gun already ran contrary to Sims’s testimony that Bublitz identified Smith as the driver.  Glover’s explanation of the goal of simplicity defies the sound logic of the defense strategy to impeach Bublitz.

The deficient performance was prejudicial, given centrality of the issue:

¶21      As stated, the central question in this case—whether Stewart dropped the gun—hinged on Bublitz’s credibility.  Glover had information available which could have cast additional doubt on Bublitz’s testimony.  The jury did not hear this information.  Introducing Sims’s report would have challenged Bublitz’s statements and forced Luna to confront the inconsistency between his testimony and Sims’s report.  Glover stated at the Machner hearing that he was unsure of what Thompson would have testified to at trial because Thompson’s report referenced Bublitz’s non-existent report.  However, Thompson’s report both impeaches Bublitz and could be used to refresh Thompson’s recollection if his testimony deviated from his report.

¶22      Bublitz was the only witness at trial who positively identified Stewart as the driver and as the person who dropped the gun.  Luna corroborated Bublitz’s testimony that the driver dropped the gun, but testified that he did not see whether the driver was Stewart or Smith.  Bublitz stated that both Stewart and Smith are African-American, both were wearing similar clothing the night of their arrest, and that it was dark outside while Bublitz was chasing them.  Bublitz also testified that he was familiar with Stewart prior to the night of the incident, but did not recognize him at the time of the chase.  Therefore, evidence of Stewart’s guilt was weak at best.  The importance of credibility evidence in a case that depends so heavily on the credibility of one witness cannot be ignored.

¶23      Based on our review of the record, we conclude that Glover’s failure to present available impeachment evidence that would cast doubt on the credibility of the State’s principal witness undermines our confidence in the verdict.  We conclude that there is a reasonable probability that the jury would have found Stewart not guilty if it had heard all of the available impeachment evidence.  See State v. Smith, 207 Wis. 2d 258, 275, 558 N.W.2d 379 (1997) (“The defendant need only demonstrate to the court that the outcome is suspect, but need not establish that the final result of the proceeding would have been different.”).

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