Sufficiency of Evidence and Ineffective Assistance of Counsel

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Samuel A. Jones

Case No.: 2016AP1033-CR; 2016AP1034-CR

Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

Focus: Sufficiency of Evidence and Ineffective Assistance of Counsel

On appeal, Jones first contends that the circuit court improperly admitted other acts evidence. He complains that the admission of such evidence violated the court’s pretrial ruling on the matter. Jones next contends that the circuit court erred in allowing a witness to testify about a matter on which she had no independent recollection. Again, this argument involves the testimony of Sturm. Jones next contends that his trial counsel was ineffective. He blames counsel for failing to strike a prospective juror who was allegedly antagonistic to the presumption of innocence. He also blames counsel for failing to call a witness. We consider each claim in turn. Finally, Jones contends that he presented newly discovered evidence warranting a new trial. This evidence consisted of an affidavit from a co-defendant named Carlton Williams who stated that Jones was at a hotel when he and Sturm went out and cashed a forged check on June 20, 2011. Williams made this affidavit after he had accepted a plea deal, which prevented him from being prosecuted for the identity theft committed on June 20, 2011.

Because Jones has not shown that D.G. was unfit to serve on the jury, trial counsel cannot be faulted for failing to strike him. See State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (failure to pursue a meritless legal issue is not deficient performance). Accordingly, we reject Jones’ first claim of ineffective assistance. Turning to the second claim of ineffective assistance, Jones blames trial counsel for failing to call an inmate named Deangelo Lobley as a witness. Jones submits that Lobley would have impeached the testimony of Darnell King, who was a witness for the prosecution. Again, we are not persuaded that Jones has demonstrated ineffective assistance of counsel. An attorney’s performance must be judged on the facts available to him or her at the time. State v. Goetsch, 186 Wis. 2d 1, 17, 519 N.W.2d 634 (Ct. App. 1994). Here, the only facts that counsel had available to him at the time of trial indicated that Lobley would provide evidence unfavorable to Jones, i.e., that he heard Jones confess his guilt. As a result, counsel did not perform deficiently by failing to call Lobley as a witness.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.