State v. Balliette, 2009AP472.

CourtUnited States State Supreme Court of Wisconsin
Citation336 Wis.2d 358,2011 WI 79,805 N.W.2d 334
Docket NumberNo. 2009AP472.,2009AP472.
PartiesSTATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. David J. BALLIETTE, Defendant–Appellant.
Decision Date19 July 2011


For the PlaintiffRespondentPetitioner the cause was argued by Daniel J. O'Brien, Assistant Attorney General, with whom on the briefs was J.B. Van Hollen, Attorney General.

For the DefendantAppellant there was a brief and oral argument by Steven D. Grunder, Assistant State Public Defender.

An amicus curiae brief was filed by Robert R. Henak, Henak Law Office, S.C., for Wisconsin Association of Criminal Defense Lawyers.DAVID T. PROSSER, J.

This is a review of an unpublished decision of the court of appeals,1 reversing a decision and order of the Winnebago County Circuit Court, Karen L. Seifert, Judge. This case requires us to determine whether the defendant is entitled to an evidentiary hearing on the basis of his conclusory allegation in a Wis. Stat. § 974.06 (2007–08) 2 motion for a new trial that his postconviction counsel was ineffective for not raising in a Wis. Stat. § 974.02 motion and on direct appeal additional ineffective assistance of counsel claims against his trial counsel.

¶ 2 We conclude that the defendant is not entitled to an evidentiary hearing because the allegations in his § 974.06 motion do not provide sufficient material facts that, if proven, demonstrate an entitlement to the relief sought.

¶ 3 The defendant's motion focused attention on the wrong counsel; it was conclusory because it failed to carefully address the two elements of ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and it generally ignored the “five ‘w's' and one ‘h’ methodology outlined in State v. John Allen, 2004 WI 106, 274 Wis.2d 568, 682 N.W.2d 433 ( John Allen ), which guide the court in meaningfully evaluating the claim. The motion failed to say who would be called as a witness at an evidentiary hearing and what their testimony was likely to prove. In attempting to construct a better defense for a retrial, Balliette did not do enough to show that a new trial was required.

¶ 4 In sum, the § 974.06 motion was insufficient. Accordingly, the decision of the court of appeals is reversed.


¶ 5 On August 30, 1999, David J. Balliette (Balliette) drove his car after consuming six to seven beers and two shots of liquor at the Ridgeway Bar in Neenah. As Balliette was driving west on County Highway GG, he came upon a Pontiac Firebird driven by Michele Thein (Thein). In the process of preparing to turn left into her driveway, Thein slowed down. When she slowed down, Balliette attempted to pass her in the left lane. As Thein turned left, Balliette struck the Pontiac, driving both vehicles into the ditch. After the collision, Thein was pronounced dead as a result of substantial head trauma.

¶ 6 Officer Charles Marousek of the Winnebago County Sheriff's Department was the second officer to respond to the accident. He spoke with Balliette and obtained Balliette's statement about drinking. He also noticed a strong odor of alcohol on Balliette's breath and observed that his speech was slurred. Officer Marousek then administered three field sobriety tests, all of which Balliette failed. Officer Marousek had Balliette perform a preliminary breath test, which resulted in a reading of .201 percent breath alcohol. At this point, Balliette was taken into custody and transported to Mercy Medical Center. Approximately two hours after the accident, Balliette provided a blood sample at the hospital. It showed a blood alcohol content of .183, which was extrapolated to .21 blood alcohol content at the time of the crash.

Balliette was subsequently charged with homicide by intoxicated use of a motor vehicle in violation of Wis. Stat. § 940.09(1)(a) and homicide by use of a motor vehicle with a prohibited alcohol concentration in violation of Wis. Stat. § 940.09(1)(b). Balliette also was charged with operating after revocation, an offense to which he pled guilty before trial.

¶ 8 At trial, Balliette claimed that the crash would have occurred regardless of his intoxication level. He asserted that Thein braked suddenly and pulled to the right, making room for him to pass. He argued that by attempting to pass on the left, he executed a normal passing maneuver. Balliette claimed that after beginning to execute this maneuver, he noticed Thein's brake lights when he was about six to seven car lengths behind Thein. He asserted that he applied his brakes and skidded into her door as Thein turned into him.3

¶ 9 The State called two accident reconstruction experts to dispute Balliette's defense. Both experts concluded that Balliette's version of the story was not possible, due to the skid marks left by Balliette's vehicle and the lack of skid marks from Thein's vehicle. The experts testified that Balliette had ample distance, a clear view, and plenty of opportunity to decelerate and avoid the collision. Balliette's trial counsel, Attorney Kevin Musolf, retained an accident reconstruction expert named Charles Scalia. Attorney Musolf did not, however, call the expert at trial. The jury found Balliette guilty, and he was sentenced to 40 years in prison.

¶ 10 Attorney Edward Hunt was assigned as Balliette's postconviction counsel. Attorney Hunt raised four claims, including two for ineffective assistance of trial counsel. Attorney Hunt asserted that Attorney Musolf erred (a) by failing to request the insertion of language in a jury instruction that would have “explained and clarified” how the victim's “conduct and acts” may have provided the defendant with an affirmative defense; and (b) by failing to object to the court's consideration of victim impact statements at sentencing without first providing Balliette the opportunity to review the statements. Attorney Hunt did not, however, raise a claim for ineffective assistance of trial counsel for Attorney Musolf's failure to present an accident reconstruction expert. The court granted Balliette an evidentiary hearing in which Attorney Hunt examined Attorney Musolf on the two issues of ineffective assistance of counsel. Attorney Musolf also prepared an affidavit on sentencing recommendations by two jurors that Attorney Hunt moved into evidence. The trial court ultimately denied all four postconviction claims, and the court of appeals affirmed.

¶ 11 In 2008 Balliette filed a motion pro se under Wis. Stat. § 974.06 asking for a new trial. He alleged ineffective assistance of postconviction counsel for Attorney Hunt's failure to raise certain claims of ineffective assistance of trial counsel.

¶ 12 Balliette's motion read in part as follows:

I. Postconviction counsel was ineffective for failing to challenge on direct appeal several acts and omissions of trial counsel that constitute ineffective assistance.


II. Postconviction counsel was ineffective for failing to challenge the court's ruling allowing evidence that the defendant's driver's license was revoked at the time of the accident.

Under I., Balliette wrote in part:

On direct appeal, Attorney Edward Hunt unsuccessfully challenged Attorney Kevin Musolf's failure to request more specific jury instructions and failure to object to letters submitted to the sentencing judge. Hunt failed to challenge other aspects of Musolf's conduct, which are detailed below. (Citations omitted.) (Emphasis added.)

¶ 14 Balliette attached to his motion a detailed report by John DeRosia (DeRosia), a professional engineer and accident reconstruction expert. In his report, DeRosia questioned the conclusions of the State's experts and pointed out that one of the expert's conclusions was based on an incorrect piece of evidence, namely, that Thein's Pontiac did not have an anti-lock brake system. DeRosia's report stated that such a braking system was nearly universal in General Motors vehicles at the time. Furthermore, pictures of the Pontiac showed an “ABS” label—a common abbreviation for anti-lock braking system. This information allegedly rebutted the State's trial testimony that if Thein had braked suddenly, she would have left skid marks. Based on these facts and other assertions, DeRosia questioned the validity of the conclusions made by the State's accident reconstruction experts.

¶ 15 Balliette's 16–page motion raised multiple questions about the performance of his trial counsel. His trial counsel did not present an accident reconstruction expert at trial to rebut the two experts presented by the State; did not correctly inform the defendant or the court with respect to a lesser-included offense; and should not have agreed to the wording of a stipulation read to the jury about the defendant's revoked driver's license. The motion also asserted that his trial counsel should have challenged the circuit court's ruling allowing evidence that the defendant's license was revoked at the time of the accident. Balliette's motion did not focus on the performance of Attorney Hunt except to assert that he “failed to challenge [these] other aspects of Musolf's conduct.” As a result, the circuit court denied Balliette's claim, ruling that Balliette had made merely conclusory allegations and did not provide a sufficient reason for raising the claim now rather than previously, and, therefore, an evidentiary hearing was not warranted. The circuit court denied Balliette's motion for reconsideration.

¶ 16 The court of appeals reversed and remanded for an evidentiary hearing, on the basis that Balliette's motion alleged sufficient material facts that, if true, would warrant relief. Balliette, No. 2009AP472, unpublished slip op. at 3–4. In addition, the court of appeals concluded that since this was a motion for ineffectiveness of postconviction counsel, Balliette alleged a sufficient reason for not previously raising the claim. Id. at 3.


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