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Trial counsel held ineffective; DA chastised for taking advantage of deficient performance

State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket

Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.

A juvenile delinquency trial boiled down to a credibility battle between Charles, the defendant, and his co-actors. Defense counsel asked a police officer why he believed one of the co-actors and not Charles. The officer responded by testifying to the co-actor’s honesty. Turns out the co-actor had lied repeatedly. The officer knew it. Defense counsel should have known it, but, in any event, didn’t try to impeach the co-actor or the officer. The DA also knew that the co-actor had lied and that the officer’s testimony was untruthful and inadmissible, but nevertheless ran with it. Bad move.

The court of appeals held that a witness may not testify that another witness is truthful.  Under §906.08(1), evidence of a witness’s “character for truthfulness” may be admitted after his character has been attacked. But the officer’s testimony here crossed a line; it was a witness’s opinion that the co-actor’s accustations against Charles were true. That violates State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) and State v. Romero, 147 Wis. 2d 164, 432 N.W.2d 899 (1988). Given that trial counsel later admitted that he didn’t know one witness couldn’t vouch for the honesty of another, the court of appeals had no problem finding “deficient performance.” Still, the court reserved its censure for the DA:

¶19      The State shares the blame for the prejudicial performance by introducing Recknagel’s “training on detecting honesty” and by asking “did you feel that [Drake] was being honest with you?”  The State added to these errors by referring in closing argument to the fact that Charles “is the only one who has been impeached today,” despite knowing that this should not have been so.[5]  The State has an obligation to the justice system.  We are troubled that the State took advantage of defense counsel’s deficient performance by introducing clearly inadmissible evidence and, most egregiously, arguing evidence that was not true.

¶20      Given the magnitude of the deficient performance by Charles’s counsel and the State’s troubling response, we conclude a reasonable probability exists that there would be a different result in this case had defense counsel not performed deficiently.

 [5]  Recknagel’s report was divulged by the State to Charles during pretrial discovery, thus the State is presumed to have known that its contents showed that Drake and Robert had repeatedly lied during Recknagel’s investigation. We call the assistant district attorney’s attention to State v. Bvocik, 2010 WI App 49, 324 Wis. 2d 352, 781 N.W.2d 719, as a reminder of the State’s obligations to the ascertainment of the truth.

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