02-0192 State v. Tkacz

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“We hold that the ‘substantial relationship’ test is the proper standard for analyzing whether a conflict of interest exists in a criminal serial representation case where the defendant raises the issue prior to trial. The decision in Love makes it clear that it is the fact that a defendant raises a conflict of interest objection after trial that triggers the application of the ‘actual prejudice’ standard and, thus, that standard is inapplicable to our case. … Based upon the court’s findings of historical fact, we conclude that the trial court’s determination that no substantial relationship existed was firmly grounded in a reasonable basis, and furthermore, the court’s legal conclusion that no conflict of interest existed was correct.”

Finally, where the jury knew that the central witness against defendant was in prison at the time of his trial for her own involvement in the homicide, that she had received a favorable parole recommendation in exchange for her testimony against defendant, and that she was a chronic drug user at the time of the homicide, there was already sufficient reason for the jury to question the witness’ credibility and we conclude, therefore, that it is unlikely that the exact number of her convictions would have materially influenced the jury’s credibility assessment.

Accordingly, we conclude that Tkacz has not satisfied his burden to prove that his trial counsel’s failure to fully impeach Wolff prejudiced his defense. Because we conclude that Tkacz’s defense was not prejudiced, we dispense with the inquiry as to whether this failure amounts to deficient performance.

Judgment and order affirmed.

Recommended for publication in the official reports.

Dist II, Manitowoc County, Willis, J., Brown, J.

Attorneys:

For Appellant: Mark S. Rosen, Waukesha

For Respondent: E. James Fitzgerald, Manitowoc; Gregory M. Weber, Madison