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Trial counsel’s failure to raise viable defense means defendant gets new trial

State v. Fontaine Washington, 2011AP2462-CR, District 1, 1/17/14; court of appeals decision (not recommended for publication); case activity

Washington fled from officers trying to stop the car he was driving. (¶2). Before Washington was finally stopped and arrested, the officers in pursuit saw him throw something “shiny” out the car window; a search of the area where the object was thrown turned up a gun about 30 feet off the roadway. (¶3). Washington was charged with being a felon in possession of a firearm, but he denied possessing, much less throwing, the gun, and went to trial. Washington was convicted, though the state’s experts testified they didn’t find Washington’s DNA or fingerprints on the gun and there was no evidence the gun had scratch marks or grass stains indicating it was thrown 30 feet from a moving car. (¶4).

Washington moved for a new trial, alleging counsel was ineffective for failing to present the defense that he could not have thrown the gun police recovered because it was found too far from the road to have been tossed from a moving vehicle. (¶5). In particular, he alleged counsel failed to elicit the fact that the gun was found 30 feet from the roadway and that he would have had to have thrown the gun more than 30 feet given the width of the road and presence of parked cars. (¶5). In addition, postconviction counsel developed demonstrative evidence about the difficulty of throwing a gun 30 feet from a car by conducting an experiment in which a similarly weighted toy gun was thrown six times from a moving car at the same site; the longest throw that experiment obtained was just over 21 feet from the roadway. (¶¶5-6).

Defense counsel testified she did not strategically reject the distance defense; instead, she said, the defense didn’t occur to her, for she “didn’t conceptualize that 30 feet would be a possible or impossible distance to throw.” (14). Thus, at trial she did nothing to suggest it was improbable, if not impossible, for Washington to have thrown the gun that far while driving. She also agreed that if he was unable to throw the gun where it was found, he would have had a possible defense. While failure to present a particular defense doesn’t automatically mean counsel was deficient, State v. Koller, 2001 WI App 253, ¶53, 248 Wis. 2d 259, 635 N.W.2d 838, the court concludes counsel’s performance was deficient under the circumstances of this case. (¶¶13-16).

A useful reminder that wondering about the small, seemingly innocuous facts might open a whole new perspective on the case and suggest possible defenses.

Further, counsel’s deficiency prejudiced Washington’s defense:

¶18      The State’s case with regard to the possession charge was entirely dependent on the testimonies of Officers Burch and Burger—both of whom testified that Washington threw a “shiny object” from his car window—and the subsequent recovery of a firearm in a vacant field on North Mother Simpson Way. Because the jury was not aware of where exactly the gun was recovered, the jury could have assumed that the gun was recovered within easy throwing distance of Washington’s car. Evidence that the gun was recovered approximately 30 feet from a roadway, and, consequently, that the throw was practically impossible, would have been probative given the following undisputed facts:  (1) Officer Lewis testified that she responded to reports of gunfire in the same area at around the same time she was contacted by Officers Burch and Burger; (2) the gun had neither Washington’s DNA nor fingerprints; (3) no argument was made that the gun had scuff marks suggesting the gun had hit the ground after being thrown 30 feet from a moving vehicle; (4) Washington consistently denied possessing a gun; and (5) neither registration records nor other witness accounts linked Washington with the recovered firearm. The lack of evidence suggesting the probability of Washington’s ability to throw a gun 30 feet or more from a moving vehicle undermines our confidence in the outcome.

A procedural note: The circuit court initially denied Washington’s postconviction motion without a hearing. After Washington appealed the court of appeals remanded for a hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). (¶5). Before the hearing Washington filed an amended motion alleging, as an alternative to his IAC claim, that the results of the throwing experiment constituted newly discovered evidence. (¶6). The circuit court found counsel was not ineffective, but granted a new trial based on the newly discovered evidence. (¶7). In addition to arguing that Washington didn’t satisfy the test for newly discovered evidence, the state objected that the trial court didn’t have the competency to consider the newly discovered evidence claim, as the remand contemplated only a Machner hearing. (¶8). Citing State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (“An appellate court should decide cases on the narrowest possible grounds”), and State v. Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (“[W]e may affirm the circuit court’s order on different grounds”), the court of appeals doesn’t decide the merits of the state’s claims because it concludes, unlike the circuit court, that Washington’s defense counsel was ineffective. (¶8).

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