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[T] State v. Cooper5/15/2003
n that he was never closer than a car length from Cooper. Taken in context, the witness's trial testimony that Cooper appeared drunk based on his movements and speech was not inherently inconsistent with his preliminary hearing testimony. Counsel's failure to bring this point out was not prejudicial.
. Counsel's statement to the jury that his client might "more likely than not [have been] intoxicated," though clearly an attempt to focus the jury's attention on the high burden of proof in criminal cases, was not artfully phrased. However, even if the statement could be construed as deficient performance, we are satisfied that it was not prejudicial, given the overwhelming evidence that Cooper had, in fact, been drinking.
. That brings us to counsel's failure to obtain and present Cooper's medical records to the evaluating psychiatrist. We find counsel's suggestion, that the psychiatrist could have asked for the records if he had wanted them, to be unpersuasive. From his conversations with his client, counsel had reason to know that many of Cooper's complaints had been well documented, and Cooper had signed a medical release. Given that Cooper was raising an NGI defense, on which he bore the burden of proof, counsel's failure to obtain and present Cooper's medical records constituted deficient performance.
. While the medical records would not have undermined the evidence that Cooper had in fact been driving while intoxicated, driving after revocation, and behaving in an disorderly fashion, they went directly to the question of whether he could appreciate the wrongfulness of his conduct or conform his behavior to the requirements of law. For instance, was Cooper capable of remembering that his license had been revoked prior to driving or moderating the tone or volume of his voice if he had suffered a seizure? The jury concluded that Cooper did not have a mental disease or defect. We cannot be confident that the jury would have reached that conclusion if it had been aware that Cooper's problems had been documented before the present charges arose. We therefore conclude that Cooper was prejudiced by counsel's failure to present the medical records to the examining psychiatrist.
. Accordingly, we reverse the judgment of conviction and post-conviction order and remand for retrial of the NGI phase. Nothing in this opinion should be construed to preclude the trial court from ordering another competency evaluation, if additional information is presented to it which raises a concern in that regard.
By the Court. -- Judgment and order affirmed in part; reversed in part and cause remanded.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5.
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