2010AP165-CR State v. Marks

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Criminal Procedure
Ineffective assistance

Arguing inconsistent theories of defense is not ineffective assistance of counsel.

“In light of the not uncommon practice of lawyers to argue inconsistent theories, we cannot say that the decision of Dekoria Marks’s trial lawyer to argue them here deprived her of the right to constitutionally effective assistance, irrespective of whether we or the trial court view that strategy as the best. As we noted in Westmoreland, 2008 WI App 15, ¶21, 307 Wis. 2d at 440, 744 N.W.2d at 925: ‘As Strickland reminds us, there is a “wide range of professionally competent assistance,” id., 466 U.S. at 690, and the bar is not very high, see Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (lawyer need not be a Clarence Darrow to survive an ineffectiveness contention).'”

“Further, although we do not have to look at the prejudice aspect of Strickland because Dekoria Marks’s trial lawyer was within the ‘wide range’ of professional practice when he asked the jury to choose either of two inconsistent defenses, Dekoria Marks has not shown that her trial lawyer’s strategic decision to present the two defenses made the result of the trial unreliable. Dekoria Marks was charged with attempted first-degree intentional homicide. See Wis. Stat. §§ 940.01(1)(a) & 939.32. The trial court instructed the jury that it could return a guilty verdict on the lesser-included crime of attempted second-degree intentional homicide if it determined that Dekoria Marks believed that she had to act in self-defense but her belief was not reasonable. As we have seen, the jury found her guilty of the lesser crime.”

Affirmed.

Publication in the official reports is recommended.

2010AP165-CR State v. Marks

Dist. I, Milwaukee County, Wagner, Conen, JJ., Fine, J.

Attorneys: For Appellant: Mogren, Joel A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Freimuth, James M., Madison

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