Ineffective Assistance of Counsel

Listen to this article

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Harvey A. Talley

Case No.: 2018AP786-CR; 2018AP787-CR; 2018AP788-CR

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

Focus: Ineffective Assistance of Counsel

Harvey A. Talley appeals judgments of conviction, entered on a jury verdict, for multiple crimes related to sexual contact with A.D., the teenage daughter of his wife. On appeal, he challenges only the conviction for first-degree sexual assault causing pregnancy. The charge was based on A.D.’s allegation, which she later recanted, that in early 2014 Talley had forced her to have sexual intercourse and that he was the father of her child, born in November 2014. Talley also appeals the order denying his postconviction motion after an evidentiary hearing.

The postconviction court conducted a Machner hearing more than two years after the trial. There was undisputed testimony that trial counsel had practiced criminal law for thirty-three years and had tried hundreds of cases. Trial counsel testified that he had no specific recollection as to why he did not ask the questions Talley claimed should have been asked.

An objective view of the record, including trial counsel’s testimony at the Machner hearing, supports the conclusion that experienced counsel could reasonably have decided to elicit as much favorable testimony from A.D. as possible and otherwise seek to avoid eliciting answers that might require trial counsel to impeach her. On that basis, we conclude that counsel’s performance “was objectively reasonable according to prevailing professional norms.” See State v. Kimbrough, 2001 WI App 138, ¶31, 246 Wis. 2d 648, 630 N.W.2d 752. Because Talley has not established that trial counsel’s performance was deficient, we affirm the order denying his motion for a new trial.

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.