Ineffective Assistance of Counsel

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Howard D. Davis

Case No.: 2017AP942-CR

Officials: Kessler, P.J., Brennan and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Howard D. Davis appeals from the judgment of conviction, following a jury trial, finding him guilty as a party to the crimes of first-degree reckless homicide and first-degree recklessly endangering safety, with both crimes having use of a dangerous weapon and repeat offender penalty enhancers. He also appeals the order denying his postconviction motion.

On appeal, Howard Davis argues that the trial court erred when it failed to conduct an evidentiary hearing on his claims of ineffective assistance of trial counsel and juror misconduct. More specifically, Howard Davis claims that trial counsel was ineffective because trial counsel (1) did not present purported alibi evidence, (2) did not obtain the testimony of a person who was present during the shooting, (3) did not adequately question a witness regarding the details of her prior convictions, (4) did not request the other acts jury instruction regarding rap lyrics, (5) did not request the other acts jury instruction regarding testimony that he failed to notify the police that a victim had shot him, (6) did not request the jury instruction addressing consideration received by a witness in exchange for testifying, and (7) did not request a jury instruction addressing the missing recording of that witness’s statement. He also asserts that the trial court (1) erred by applying an incorrect legal standard when it overruled trial counsel’s objection to the testimony of the witness whose recorded statement was missing, and (2) erred by denying his juror misconduct claim without an evidentiary hearing.

We are not persuaded. We conclude that Howard Davis did not allege sufficient facts regarding his ineffective assistance of trial counsel and juror misconduct claims that would entitle him to relief and, therefore, the trial court properly denied his motion without a hearing. We also conclude that Howard Davis did not preserve his claim that the trial court applied the wrong legal standard in overruling trial counsel’s objection to the testimony of the witness whose recorded statement was missing. Consequently, we affirm.

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Derek A. Hawkins is a trademark corporate counsel attorney for Harley-Davidson, where he concentrates his practice on brand protection and strategy.