Criminal Procedure — ineffective assistance

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

In 1996, a jury found Douglas H. Stream guilty of first-degree intentional homicide as party to a crime. See Wis. Stat. §§ 940.01(1) & 939.05 (1997–1998). We affirmed Stream’s conviction on direct appeal. See State v. Stream, No. 1997AP318-CR, unpublished slip op. (WI App Feb. 17, 1998). In June of 2011, Stream filed a Wis. Stat. § 974.06 motion claiming that his trial and postconviction lawyer gave him constitutionally deficient representation. See State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 682, 556 N.W.2d 136, 139 (Ct. App. 1996) (ineffective assistance may be a sufficient reason for not having previously raised issues). The circuit court denied the motion without holding a hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) (hearing to determine whether lawyer gave a defendant ineffective assistance). Stream claims that his trial lawyer was ineffective because the lawyer: (1) did not object during the pre-trial hearing to determine whether he was fully advised of his rights mandated by Miranda v.

Arizona, 384 U.S. 436 (1966), and whether his statements to the police were voluntary, see State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965), when the State and the trial court asked him whether his confession was true; and (2) did not ask for “mandatory exclusion” of all witnesses who were testifying at the Miranda-Goodchild hearing. He claims that his postconviction lawyer was ineffective because he did not challenge the trial lawyer’s ineffectiveness. We affirm. Publication in the official reports is not recommended.

2011AP2051 State v. Stream

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

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison