State v. Marty, No. 86-0371-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: DYKMAN
• Citation: 137 Wis.2d 352,404 N.W.2d 120
• Docket Number: No. 86-0371-CR
• Decision Date: 24 February 1987
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Leroy MARTY, Defendant-Respondent.

Page 120

404 N.W.2d 120 137 Wis.2d 352 STATE of Wisconsin, Plaintiff-Appellant,
v.
Leroy MARTY, Defendant-Respondent. No. 86-0371-CR. Court of Appeals of Wisconsin. Submitted on Briefs Oct. 17, 1986.
Opinion Released Feb. 24, 1987.
Opinion Filed Feb. 24, 1987.

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[137 Wis.2d 354] Bronson C. La Follette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-appellant.

T. Christopher Kelly, Madison, for defendant-respondent.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

The state appeals from an order granting defendant a new trial because of ineffective assistance of counsel. Because the trial court correctly concluded that defendant's trial counsel was ineffective, thereby prejudicing defendant, we affirm. We do not address defendant's argument that he is entitled to a new trial because of errors in admitting and excluding evidence.

Defendant was charged with five counts of sexual assault, four alleging sexual contact and one alleging sexual intercourse. The sexual intercourse charge was dismissed prior to trial, and defendant was found guilty of the other charges. The trial court granted defendant's motion for a new trial because of ineffective assistance of counsel.

The trial court made findings and explained its reasons for ordering a new trial. It found that the victim was the only state's witness to the assault, and that her credibility was essential for a conviction. Though the victim told police that defendant entered her room through a window on two occasions and assaulted her, she changed her story at the preliminary examination, claiming one entry through the window and one through a door. At trial, she testified that defendant had entered her room through the door, denied that the window was inoperable, and said [137 Wis.2d 355] that defendant could get into her bedroom through the window.

Attorney Roger Merry represented defendant at the preliminary hearing. The victim lived with defendant, her stepfather. Merry was their landlord, and knew that the window entrance had been nailed and painted shut prior to the alleged assault. He believed that this information was so critical that he withdrew from the case to enable him to be a witness. He also told defendant's new trial counsel that two state's witnesses who would provide "other crimes" evidence against defendant could be impeached by other witnesses.

Defendant's trial counsel did not call Attorney Merry at trial, did not question the inoperability of the window, and did not interview or attempt to impeach the state's two witnesses as Attorney Merry suggested. At the postconviction hearing, trial counsel testified that he did not pursue the window testimony because he feared that would lead to the jury's discovery of the

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victim's allegation that defendant had had intercourse with her at another time. He testified that he did not impeach the two "other crimes" witnesses because he wanted to focus on his alibi defense.

The trial court found that the window evidence was critical, that it could have been put before the jury without the risk identified by defendant's trial counsel and that an ordinarily prudent attorney would have done so. It disbelieved trial counsel's reasons for failing to impeach the "other crimes" witnesses, finding that an ordinarily prudent attorney would have investigated the witnesses and their stories. The court found the errors to be critical and pervasive, that the state's case was based entirely on [137 Wis.2d 356] the victim's testimony, and that trial counsel focused the defense on relatively unimportant matters. It concluded that the errors were prejudicial, and ordered a new trial.

A person charged with a crime has a right to effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution and by art. I, sec. 7 of the Wisconsin Constitution. State v. Johnson, 126 Wis.2d 8, 10, 374 N.W.2d 637, 638 (Ct.App.1985), rev'd on other grounds, 133 Wis.2d 207, 395 N.W.2d 176 (1986). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) set out the federal test for ineffective assistance of counsel. Johnson is the most recent discussion of the Strickland rule in a Wisconsin setting. Because the Johnson court found a denial of effective assistance of counsel under the federal constitution, it did not address art. I, sec. 7 of the Wisconsin Constitution. Id., 133 Wis.2d at 224, 395 N.W.2d at 184.

Ineffective assistance of counsel claims under the sixth amendment require a two-part analysis. First, counsel's performance must be deficient; second, the deficient performance must be prejudicial. Johnson, 133 Wis.2d at 216-17, 395 N.W.2d at 181, quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Both the performance and prejudice components are mixed questions of law and fact. State v. Pitsch, 124 Wis.2d 628, 633-34, 369 N.W.2d 711, 714 (1985), quoting Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. We will not reverse a trial court's findings of fact unless they are clearly erroneous. Sec. 805.17(2), Stats. If the facts have been established, whether counsel's representation was deficient and, if it was, whether it was prejudicial are questions of law, which [137 Wis.2d 357] we determine de novo. Pitsch, 124 Wis.2d at 634, 369 N.W.2d at 715. The Strickland "deficiency" test, as repeated in Johnson, determines whether counsel's representation "fell below an objective standard of reasonableness." Johnson, 133 Wis.2d at 217, 395 N.W.2d at 181.

There are no standards by which to judge counsel's performance. Pitsch, 124 Wis.2d at 636, 369 N.W.2d at 716. However, in deciding an ineffectiveness claim, a court

must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Johnson, 133 Wis.2d at 217, 395 N.W.2d at 181, quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

The "prejudice" required by the second part of the Strickland test is whether "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Johnson, 133

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Wis.2d at [137 Wis.2d 358] 222, 395 N.W.2d at 183, quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Here, the federal and state tests may diverge. Strickland requires a defendant to prove prejudice. Pitsch, 124 Wis.2d at 641, 369 N.W.2d at 718. However, in State v. Davis, 114 Wis.2d 252, 257, 338 N.W.2d 301, 303 (Ct.App.1983), we said:

If the trial court determines that trial counsel's actions were unreasonable and therefore violative of his sixth amendment right to assistance of counsel, it must further determine whether such action was prejudicial to the defendant. At this juncture in this process, it is the burden of the state to prove that the unreasonable actions of counsel are harmless beyond reasonable doubt. An error of constitutional dimension is prejudicial unless a court can conclude it is harmless beyond a reasonable doubt. [Footnote omitted.]

We need not consider whether the federal and state tests differ unless we conclude that trial counsel's representation was ineffective. We therefore first consider the attorney's performance. The trial court's lengthy decision and order...