2009AP1509-CR State v. Miller

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Motor Vehicles
OWI; hearsay; ineffective assistance

Jerry L. Miller appeals the judgment, entered following a jury trial, convicting him of operating a motor vehicle while under the influence of an intoxicant, third offense. He also appeals the denial of his postconviction motion. Miller argues that his trial attorney was ineffective because he "failed to take reasonable steps to locate an essential defense witness [Jamie Peaslee] and serve him with a subpoena" for his jury trial, thus preventing the jury from hearing from two witnesses who would have testified that Peaslee, who accompanied Miller the night of his arrest, admitted to them that he was the actual driver of the truck. Miller also argues that the postconviction court erred in denying his postconviction motion when it reversed the finding of the trial court and determined that Miller's trial attorney's performance was not deficient in his attempt to subpoena Peaslee, but nevertheless refused to revisit the trial court's determination that the admissions allegedly made by Peaslee to two witnesses were ambiguous, were not statements against penal interest and were uncorroborated. Wis. Stat. § 908.045(4).

Based upon a reading of the entire record, this court agrees with the postconviction court that Miller's trial attorney was not ineffective in his attempts to subpoena Peaslee, and that consequently, Peaslee was "unavailable" as that term is used in the hearsay exception found in Wis. Stat. § 908.04(1)(e). Further, the statements made to two witnesses by Peaslee were unambiguous, exculpatory, and corroborated. As a consequence, they should have been admitted and this error was not harmless. Thus, this court reverses and remands for a new trial. This opinion will not be published.

2009AP1509-CR State v. Miller

Dist I, Milwaukee County, Siefert, J., Curley, P.J.

Attorneys: For Appellant: Chapman, Dan, Hudson; For Respondent: Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison; Raymond, Andrea Beth, Milwaukee

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