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Trial counsel was ineffective for failing to investigate, present defense witnesses

State v. Tanya Lynn Schmit, 2017AP871-CR, District 3, 7/31/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Schmit was charged with OWI. She told her trial lawyer there were two witnesses who would support her defense that she wasn’t the driver, but trial counsel didn’t interview the witnesses or call them at trial. Trial counsel’s failure constitutes deficient performance and the deficiency was prejudicial.

This case arose after witnesses saw a vehicle with two occupants strike a guard wall and then proceed to a nearby gas station. The state’s evidence that Schmit rather than Aumer, the other occupant, was driving was ambiguous at best. In talking to the officer who responded to the scene Schmit both denied and admitted she was driving, while the eyewitness descriptions of what transpired tended to support the conclusion Schmit was the passenger, not the driver. (¶¶2-4). Before trial Schmit told her lawyer about two witnesses—Chad, Schmit’s estranged husband, and Holly Korn, a co-worker—who could provide exculpatory information. Trial counsel didn’t contact or investigate either witness and couldn’t recall a reason for not doing so. (¶¶6-9).

The circuit court found trial counsel wasn’t deficient because Schmit didn’t provide the enough information sufficiently in advance of trial for him to investigate. (¶10). The court of appeals firmly rejects that conclusion:

¶17     At the Machner hearing, Schmit established that she told her attorney one to two weeks before the trial that Korn was “at the scene” and “made factual observations that she [Korn] could relay.” Schmit’s attorney testified that he “assum[ed]” Schmit told him about Korn’s observations because they were “helpful,” but he could not remember the extent of what Schmit told him. Schmit’s attorney also testified Schmit told him that Chad communicated, “either by phone or by text, [with] somebody that was at the scene.” The attorney testified that he “learned about Chad well before” Korn but later testified that Schmit told him about Chad’s potential testimony at nearly the same time he learned about Korn. Korn and Chad were known to Schmit as she worked with them, and, therefore, they could have been readily located. Schmit’s attorney did not provide any testimony that “one to two weeks” would not have been enough time to investigate the witnesses. Schmit further established through Korn’s and Chad’s testimony at the Machner hearing that had her attorney interviewed Korn and Chad, he would have discovered both witnesses possessed exculpatory testimony that implicated Aumer as the driver. We also conclude that, through Korn’s and Chad’s testimony, Schmit has shown with sufficient specificity whather attorney’s investigation would have revealed.

The state tries to distinguish this case from State v. Jenkins, 2014 WI 59, 355 Wis. 2d 180, 848 N.W.2d 786, on the ground that Schmit didn’t give her lawyer enough information about the witness’s possible testimony. The court will have none of this, as “Jenkins does not require a defendant to provide counsel with great detail about the substance of a witness’s likely testimony before the attorney has a duty to investigate.” (¶18).

The circuit court also held that even if trial counsel was deficient, there was no prejudice, as Chad’s testimony was inadmissible hearsay and Korn’s of “limited probative value.” (¶¶11, 23). The court of appeals disagrees, in a fact-based discussion that boils down to the fact the uncalled witnesses “could have significantly undermined the State’s case” (¶24) and provided evidence supporting a reasonable inference Schmit wasn’t the driver (¶25).

The circuit court also said there was no prejudice because it would have excluded Chad and Korn from testifying because they would have been disclosed too close to trial. (¶¶11, 26). In a conclusion rare as hen’s teeth, the court of appeals holds the circuit court’s finding about the untimeliness of the disclosure is clearly erroneous, and that dooms the propriety of the circuit court’s conclusion it would have excluded the witnesses:

¶28     …. The court’s only finding to support the conclusion Schmit’s disclosure was untimely is that Schmit did not inform her attorney about Korn’s and Chad’s potential testimony until years after her arrest. However, this finding ignores when Schmit first learned of the content of Korn’s and Chad’s potential testimony in relation to when she conveyed that information to her attorney. The record reflects that Schmit informed her attorney of Chad’s and Korn’s potential testimony immediately upon learning of it. The record further reflects no basis to conclude that Schmit was aware of the substance of Korn’s and Chad’s testimony until a week prior to trial. The court failed to consider this evidence and determine whether it would provide good cause for the failure to earlier disclose Korn and Chad as witnesses. Because the court failed to consider the evidence of record, the court erroneously exercised its discretion in concluding Schmit’s disclosure was untimely.

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