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Ineffective Assistance of Counsel – Voluntary Intoxication; Ineffective Assistance – State’s Closing Argument

State v. Richard L. Daniels, 2010AP1715-CR, District 3, 2/23/11

court of appeals decision (1-judge, not for publication); for Daniels: John M. Carroll; case activity

Ineffective Assistance of Counsel – Voluntary Intoxication

Voluntary intoxication requires that the defendant establish utter lack of capability to form the requisite intent; because Daniels’ version couldn’t make this showing, counsel’s failure to pursue the defense wasn’t deficient performance.

¶12      It was reasonable for Daniels’ trial counsel to view Daniels’ version of events as inconsistent with a voluntary intoxication defense, especially given Daniels’ testimony—his explanation was reasoned and thought out.  Daniels’ “vivid and detailed” testimony showed he was not so impaired as to qualify for the voluntary intoxication defense.  See Nash, 123 Wis. 2d at 166.  Further, it is a reasonable strategy to avoid inconsistent defenses.  See Lee v. State, 65 Wis. 2d 648, 654, 223 N.W.2d 455 (1974).  We conclude Daniels’ trial counsel’s performance was not deficient.

Ineffective Assistance – State’s Closing Argument

An attorney is ethically precluded from expressing to the jury a personal opinion of someone’s guilt or innocence, or of a witness’s credibility, unless it is clear that the lawyer’s belief is mere commentary related to the evidence, ¶14. The prosecutor’s closing argument to the effect that certain “means {Daniels] is not credible” didn’t violate this rule, therefore defense counsel didn’t perform deficiently in failing to object to the comment.

¶16      The prosecutor’s remarks did not amount to an improper opinion.  It is apparent the State was arguing that the evidence of Daniels’ six prior convictions made his testimony less credible.  This argument was proper because Daniels testified that he had six prior convictions and the circuit court instructed the jury that convictions could be used to determine the credibility of the witnesses.  See State v. Embry, 46 Wis. 2d 151, 160, 174 N.W.2d 521 (1970) (noting when “an opinion is expressed it must be clear that it is based solely upon the evidence in the case”).  Consequently, we conclude Daniels’ trial counsel was not deficient for failing to object to that statement.

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