Weatherall v. State

• Decision Date: 02 June 1976
• Docket Number: No. 75--17--CR,75--17--CR
• Citation: 242 N.W.2d 220,73 Wis.2d 22
• Parties: Norman WEATHERALL, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 220

242 N.W.2d 220

73 Wis.2d 22

Norman WEATHERALL, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--17--CR.

Supreme Court of Wisconsin.

Submitted May 5, 1976.

Decided June 2, 1976.

Howard B. Eisenberg, State Public Defender, and Robert J. Paul, Asst. State Public Defender, filed briefs, for plaintiff-in-error.

Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., filed brief, for defendant-in-error.

ROBERT W. HANSEN, Justice.

Here there are two writs of error, challenging the competency of trial counsel and the sentences imposed. Each issue will be considered separately.

CHALLENGE TO COMPETENCY OF TRIAL COUNSEL.

The state public defender's office has been substituted for retained trial counsel as to the seeking of postconviction relief for this defendant. Successor counsel attacks the conduct of the defense by trial counsel. Here, as is often enough the case, ¹ this tempts postconviction counsel to stress what he would have done differently had he conducted the defense at time of trial. ² Our court has called this hindsight-is-better-than-foresight approach to be 'Monday-morning quarterbacking' ³ and has made clear that '. . . it is the right of a defendant and trial counsel to select the particular defense, from among the alternatives available, upon which they elect to rely.' ⁴ In deciding upon trial tactics, ". . . (I)t is the considered judgment of trial counsel that makes the selection among available defenses, not the retroactive conclusion of postconviction counsel." ⁵ Application of this rule as to trial tactics makes it unnecessary to do more than to discard almost all of the situations in which postconviction counsel indicates that he would have, in pursuit of a different game plan, done some things that trial counsel here did not do and not done some things that trial counsel did do.

The challenge to competency of trial counsel that goes beyond a matter of trial tactics is the contention of postconviction counsel that the retained trial attorney rejected an available defense in favor of a defense that was not a defense at all. The standard for determining effective or adequate representation is that it '. . . must be equal to that which the ordinarily prudent lawyer, skilled and versed in criminal law, would give to clients who had privately retained his services.' ⁶ Trial counsel here has had many years of experience in the criminal law field and was privately retained by this defendant. Not denying the experience and background of trial counsel, postconviction counsel argues that trial counsel was required to raise the defense of entrapment instead of the 'Good Samaritan' approach that he used in arguing the case to the jury.

The facts of the case as presented at trial are as follows:

For the prosecution, an undercover agent testified to three purchases of heroin from the defendant, each at a different time. As to the first sale, his testimony was that he was introduced to the defendant and asked the defendant if he would sell him some heroin. Defendant replied that he could and that it would cost $50. The agent agreed to the price and defendant went to get the heroin and returned to make the sale. As to the second sale, the agent testified that they met by accident in a tavern, and the agent asked defendant if he had a '10 cent bag of boy' (a ten dollar bag of heroin). Defendant responded affirmatively. Sometime later defendant gave the agent the heroin and received the $10. As to the third sale, the agent testified that while they were in a store the defendant asked the agent if he wanted to 'cop some sharp boy' (buy some good heroin). The agent said he did. Defendant met the agent later in the tavern and the exchange of $10 for the heroin took place.

For the defense, the principal witness was the defendant. As to the first sale, he testified that he did not sell any heroin to the agent. Instead, he testified, he got some heroin for his girl friend, Jeanine, 'because she was a junkie.' As to the second sale, the defendant admitted the sale to the agent but stated he sold the heroin only because the agent told him that he (the agent) had not been able to get any heroin and was becoming sick. As to the third sale, the defendant admitted the fact of sale to the agent and gave the same reason for making it. As to the last two sales, his testimony was: 'On the last two occasions I obtained it as a result--help him to prevent him from becoming sick and ill. . . .'

Postconviction counsel views the record of such testimony as having 'presented in its most classic form a setting for an entrapment defense.' ⁷ To establish the defense of entrapment, the '. . . burden of the accused is to show by a preponderance of the evidence that the inducement occurred.' ⁸ Additionally, to defeat such defense, '(t)he burden of the state would be to show beyond a reasonable doubt that the accused had a prior disposition to commit the crime.' ⁹ We are not required to predict the outcome of the case if it had been tried as the postconviction counsel now states he would then have tried it. The sole question before us is whether there was a basis in reason or any rational basis for the trial counsel recommending to his client that the defense of entrapment not be attempted. In explaining his not relying on entrapment, trial counsel gave as the basis for his exercise of legal judgment the fact that there were three deliveries. That is certainly a material factor, but here, on the defendant's own testimony, there is no foundation for claiming entrapment with any chance of success. With the defendant denying the first sale, he could hardly claim that he was entrapped into making the sale he claimed he did not make. As to the second two sales, defendant's statement that he made the sales of heroin to help the agent ('help him to prevent him from becoming sick and ill') falls far short of the degree of inducement required to be proved to establish entrapment. ¹⁰ There is no evidence of the agent having to overcome refusals and reluctance to make the purchase. ¹¹ Moreover, the defendant's testimony, plus the fact of more than a single sale, establishes a prior disposition to commit the crime. Trial defense counsel is not '. . . required to pursue any and all roads, however uninviting, that might lead to creating doubt in the minds of the jury.' ¹² There was a rational basis for trial counsel not to use the defense of entrapment. As our court has said, trial counsel is 'not required to assert an untenable defense because postconviction counsel, predictably almost, will later claim that such defense should have been asserted.' ¹³

Rejecting entrapment as an appropriate theory of the case for the defense, trial counsel instead opted to conduct the trial and made his plea to the jury under a 'Good Samaritan' approach. Given the denial of one sale and the admission by his client of the other two sales, counsel sought to increase the possibility of the jury accepting his client's denial as to the first sale by portraying his client as one who had sought only to help someone in trouble and distress. Establishing such intent to help, rather than to profit, would not be a legal defense under the statute defining the crime charged. ¹⁴ However, such attempt to put his client in the most favorable light possible, if successful, might incline the jurors to accept, on the issue of credibility, the testimony of the defendant rather than that of the undercover agent as to the first sale, the only one denied by defendant. Our court has taken judicial notice of the fact that juries do, on occasion, temper justice with leniency. ¹⁵ As an experienced criminal lawyer, trial counsel was entitled to give weight to such extra-legal possibility. He is no more to be faulted for such exercise of professional judgment than is the defense counsel who, facing formidable adverse facts, advises his client to plead guilty, perhaps on a lesser charge, rather than to go to trial on a plea of not guilty. Later on, postconviction counsel may not agree with the advice given and followed, but that is always later on.

Postconviction counsel lists other complaints as to the trial counsel's conducting of the defense for this defendant. Some seem almost frivolous or conjectural in nature. Most relate to trial tactics during the course of the trial. All have been reviewed and considered, and any and all together are rejected as warranting a finding of inadequate representation of this defendant by his trial counsel. Many of the particularized complaints relate to the argument of postconviction counsel that entrapment should have been the theory of the defense. For example, the claim of insufficient time given to preparation and failure to examine certain police reports is clearly related to the nature of the defense theory--conceding the two sales to have been made by arguing they were acts of a Good Samaritan, wanting only to help one who claimed to be sick or about to become sick. As trial counsel stated: 'In handling a case, I formulate a defense. The defense I had formulated for Mr. Weatherall did not necessitate looking at a police report.' There is a duty on the part of trial lawyers in criminal cases to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. ¹⁶ This includes efforts to secure exculpatory information in the possession of the prosecution and law enforcement authorities. ¹⁷ However, this duty, even where breached, does not, in the absence of a claim that exculpatory evidence was thereby overlooked or not discovered, constitute a basis for holding that a defendant was denied adequate representation at the time of trial. As to this, as well as to the claim that more time should have been allotted to preparing for trial, it is the conduct of the trial, not the preparation, that is to be...