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Effective Assistance – OWI-Causing Injury; Cross-Examination; Presentation of Defense

State v. Tijuan L. Walker, 2010AP2587-CR, District 1, 11/29/11

court of appeals decision (not recommended for publication); for Walker: Matthew S. Pinix; case activity

Walker was tried for and convicted of injury by intoxicated use of a vehicle, § 940.25(1)(a), after his car collided with DeAnn Braggs’. A form accompanying the post-accident test kit containing Braggs’ blood (which had little or no alcohol content) noted that the vials of blood were labeled “Walker, Tijuan.” Counsel’s decision not to exploit this opening, instead conceding Walker’s intoxication, was sound.

¶26      We will not “second-guess a trial attorney’s ‘considered selection of trial tactics or the exercise of a professional judgment in the face of alternatives that have been weighed by trial counsel.’  A strategic trial decision rationally based on the facts and the law will not support a claim of ineffective assistance of counsel.”  State v. Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471 (Ct. App. 1996) (citations omitted).  Here, trial counsel’s strategic decision to concede intoxication is exactly the sort of professional judgment that we conclude does not support an ineffective assistance of counsel claim.

¶27      First, trial counsel’s decision to concede intoxication seems particularly sound given that there was plenty of evidence indicating that the blood vials attributed to Braggs were in fact Braggs’s.  …

¶28      Second, trial counsel rationally concluded that the State’s case with regards to causation was weak and that the defense’s efforts would be better spent attacking that element.  …

¶29      Third, while trial counsel conceded intoxication, she did not ignore police error in labeling the vials; trial counsel cross-examined the witnesses accordingly and raised the issue in her closing statement.  Trial counsel ably used the mistake to Walker’s advantage, pointing out the sloppiness of the police investigation, while simultaneously gaining credibility with the jury by conceding an issue that she did not believe strong enough to pursue.

¶30      In short, trial counsel’s decision to concede intoxication and focus the defense’s energy on causation was a rational, strategic decision based upon professional judgment given the evidence demonstrating that the vials were correctly identified by the State Crime Lab and the weakness of the State’s case on causation.  Consequently, trial counsel’s concession does not amount to ineffective assistance of counsel. See Strickland, 466 U.S. at 687.

Failure to cross-examine  police officers about inconsistencies in an accident report was, though admittedly non-strategic, not the product of deficient performance.

¶34      Both attorneys who represented Walker at trial acknowledged during the Machner hearing that, although they had a copy of the motor vehicle accident report before trial, they did not notice the discrepancies between the picture and written narrative and the fill-in-the-blank ovals.  However, we conclude that their failure to do so was not deficient.  The discrepancies were buried in a busy, fill-in-the-blank form that was dense with information.  Trial counsel’s failure to notice the discrepancies cannot be defined as an act or omission that falls “outside the wide range of professionally competent assistance.”  See Strickland, 466 U.S. at 690.

(Nor was the omission prejudicial: given “substantial” other evidence supporting the defense theory of sloppy police work, this line of cross-examination “would have been merely cumulative evidence that the investigation was sloppy and would have added little to the defense’s case,” ¶35.)

A separate challenge to failure to cross-examine the accident reconstruction expert about inconsistencies between his pretrial report and trial testimony is rejected on the basis that any discrepancy “is a minor one, with little impeachment value,” ¶38.

Counsel’s reliance on an “impartial eyewitness” was reasonable, notwithstanding the witness’s impeachment with a prior inconsistent statement.

¶47      Trial counsel’s reliance on Norman’s testimony was reasonable because he was an impartial eyewitness, who had no motive to lie, and whose account of the accident was favorable to the defense.  It was reasonable for trial counsel to believe any impeachment resulting from the contradictory police report was of little consequence because of the evidence presented by the defense demonstrating that the police investigation was sloppy and unreliable.  Weighing the sloppiness and unreliability of the police investigation against an adamant eyewitness with no motive to lie, trial counsel acted well within the realm of professional reasonableness in relying on Norman’s testimony to attack the State’s case on causation.  See Elm, 201 Wis. 2d at 464-65.  In short, trial counsel’s decision to rely on Norman’s testimony was not deficient, and therefore, not ineffective.  See Strickland, 466 U.S. at 690.

Nor was counsel ineffective for failing to retain an accident reconstruction expert: reliance on the eyewitness alone was sound trial strategy; the defense didn’t need its own expert in order to highlight weaknesses with the State’s expert; “hiring an expert could have been detrimental to the defense” (i.e., by contradicting the favorable eyewitness account); the strategy “to poke holes in the State’s case” by “emphasizing the mistakes made by police during the investigation” was reasonable, ¶¶51-54.

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