07-2628 Johnson v. Thurmer

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Habeas Corpus
Ineffective assistance

It was not ineffective assistance of counsel not to move to strike a witness’ implication of the defendant in an uncharged crime.

“Johnson next claims that trial counsel was ineffective for failing to object to witness testimony that linked him to an uncharged crime and for failing to have that testimony stricken from the record. At trial, a witness to one robbery identified Johnson as the man who robbed her store and testified about the description she gave to police after the robbery. During that testimony, the witness inadvertently disclosed one detail from a different description she gave regarding another similar robbery that Johnson was suspected of committing. Johnson’s claim that his counsel was deficient for not objecting to this testimony fails, as it is clear from the record that the witness’s response was unexpected and sudden, likely the product of nervousness during testimony, and counsel could not have objected prior to her response. His claim that counsel was deficient for not having the testimony stricken fails as well. Even though the testimony could have been stricken, as it violated the trial judge’s order, the decision not to have it stricken was likely a sound tactical decision, designed to not draw attention to the very issue Johnson’s counsel rightfully wished to bury. It is well established that our scrutiny of counsel’s trial strategy is to be deferential and that we do not second guess the reasonable tactical decisions of counsel in assessing whether his performance was deficient. United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009); Rodriguez v. United States, 286 F.3d 972, 986 (7th Cir. 2002). With that deferential eye, we conclude that counsel’s performance was not deficient on this point.”

Affirmed.

07-2628 Johnson v. Thurmer

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Kanne, J.

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