 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Falk6/29/2000
acts or other character type evidence, relating to Shannon, unless he had something to connect her with the sort of violence that could cause the severe injuries observed with baby Laura," and no evidence presented at trial or post-conviction met this criteria. The court also ruled that counsel was not deficient in failing to obtain a psychological profile of Shannon to show she was more likely to mistreat Laura than was Richard. Counsel testified that he did consult a psychologist and, based on that consultation, determined he could not make the connection between what he knew of her conduct and a propensity to commit the type of injuries Laura had. The court accepted this testimony as true. Counsel also testified that although he did not have the CHIPS psychological evaluation, he knew about Shannon's temper and hostility and felt he brought this out at trial. The court agreed he had done so.
. For a defendant to prevail on a claim of ineffective assistance of counsel, he or she must establish both that counsel's actions constituted deficient performance, and that the deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's performance is not deficient unless it is shown that he or she "made errors so serious that counsel was not functioning as the `counsel' guaranteed ... by the Sixth Amendment." State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). "Review of counsel's performance gives great deference to the attorney and every effort is made to avoid determinations of ineffectiveness based on hindsight; instead, the case is reviewed from counsel's perspective at the time of trial, and the burden is ... on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms." Id.
. To meet the prejudice test, the defendant must show that there is a reasonable probability that, but for trial counsel's deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694.
. The trial court's findings on what the attorney did and the basis for the challenged conduct are factual and will be upheld on appeal unless they are clearly erroneous. See State v. Weber, 174 Wis. 2d 98, 111, 496 N.W.2d 762 (Ct. App. 1993). However, whether counsel's actions were deficient and, if so, whether they prejudiced the defense, are questions of law to be determined independently by the reviewing court. See State v. Hubanks, 173 Wis. 2d 1, 24-25, 496 N.W.2d 96 (Ct. App. 1992).
. We consider first the evidence that might be categorized as "other acts," all of which, the court stated in its decision, would not have been admitted because it was not relevant. If that ruling is correct, it was not deficient of counsel not to present it, or alternatively, his failure to do so was not prejudicial. We have reviewed the many instances Richard refers to that might fall into this category, and conclude that, applying the analysis we have already conducted with the offer of proof, none are admissible. By way of example, we mention specifically the instances that present the strongest argument-and even these, we hasten to add, do not present close questions: throwing Cody into his crib from the foot of the bed where she was sitting (about three feet away), saying "You better get to sleep now," when he was hooked up to a pump which was hooked to a feeding tube in his stomach; spanking Cody when he was one year old; losing her temper with Cody when he was three and one-half because he was not sharing his toys with his cousin, and so taking him by the arm and dragging him across the room to the corner, which caused him to cry; pinching Laura's nose and laughing when Laura cried; and,
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|