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Criminal Procedure — ineffective assistance

Wisconsin Court of Appeals


Criminal Procedure — ineffective assistance

The defendant was not prejudiced by his counsel’s failure to discover that a witness for the state had six prior convictions, rather than two.

“Oddly, although Lobermeier argues that his rights were violated by the State’s non-compliance with WIS. STAT. § 971.23(1)(f), and his trial lawyer’s failure to discover Thornton’s four other convictions, Lobermeier does not tell us, and did not tell the trial court, what those other four convictions were. This alone, either under a harmless-error analysis, see State v. Harris, 2008 WI 15, ¶41, 307 Wis. 2d 555, 577–578, 745 N.W.2d 397, 408 (violation of WIS. STAT. § 971.23 subject to a harmless-error analysis), or under a Strickland prejudice analysis, dooms his contention. Simply put, the trial court did not have a chance to assess whether it would have permitted any of the four other convictions to be a basis for the jury’s evaluation of Thornton’s credibility. Moreover, as the trial court opined in its written decision denying Lobermeier’s request for postconviction relief, Thornton’s testimony that Lobermeier helped him do some work for Heinitz a week before the crimes cuts both ways: ‘The failed disclosure/discovery of Mr. Thornton’s additional four convictions was completely inconsequential. It was inconsequential because, as things turned out, Mr. Lobermeier didn’t contest the fact that Mr. Lobermeier had been at the victim’s house the week before the robbery.’ Additionally, as the trial court also pointed out, Lobermeier’s trial lawyer used the fact that Lobermeier had been at Heinitz’s house a week before she was attacked to further impeach her identification of Lobermeier as her attacker because she apparently did not like him and, having seen him a week before she was attacked could erroneously conflate the two experiences. On our de novo review of the legal issues involved in this aspect of Lobermeier’s appeal, we agree.”


Recommended for publication in the official reports.

2011AP68-CR State v. Lobermeier

Dist. I, Milwaukee County, Sankovitz, J., Fine, J.

Attorneys: For Appellant: Cornwall, Andrea Taylor, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison

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