TRIAL COUNSEL WAS PREJUDICALLY DEFICIENT IN THE PRE-TRIAL STAGE FAILING TO INVESTIGATE CO-DEFENDANT, DERRICK HOWARD WHOM WOULD HAVE PROVIDED INFORMATION UNDER THE LEGITIMATE TENDENCY TEST THAT A THIRD PERSON COULD'VE COMMITTED THE CRIME ABSENT THE REQUIREMENT TO ESTABLISH GUILT OF THIRD PERSONS TO THE DEGREE OF CERTAINTY AS A REQUISITE TO SUSTAIN A CONVICTION IN ORDER FOR THIS TYPE OF EVIDENCE TO BE ADMITTED TO A JURY.
THE ATTORNEY'S DUTY TO INVESTIGATE IS AN ESSENTIAL ELEMENT TO THE ADVERSIAL TESTING PROCESS, WHICH WILL GENERALLY NOT FUNCTION PROPERLY UNLESS DEFENSE COUNSEL HAS DONE SOME INVESTIGATION INTO THE STATE'S CASE AND INTO VARIOUS DEFENSE STRATEGIES. WHETHER AN ATTORNEY RELIES PRIMARILY ON FORMAL OR INFORMAL TECHNIQUES TO PREPARE FOR A TRIAL, THE OBJECTIVE IS THE SAME: GATHERING A LARGE QUANTITY OF EVIDENCE THAT IS ADMISSIBLE AND CREDIBLE FOR TRIAL. AND IF THE ATTORNEY ACHIEVES THAT PRE-TRIAL OBJECTIVE, THE ATTORNEY'S CLIENT SHOULD GAIN A FAVORABLE TRIAL VERDICT. BUT THE TRIAL VERDICT IS LARGELY DRIVEN BY THE QUANTITY AND QUALITY OF ADMISSIBLE EVIDENCE UNEARTHED DURING FORMAL AND INFORMAL PRE-TRIAL DISCOVERIES, WHICH BY THE RECORD DEFENSE COUNSEL WAS PREJUDICIALLY DEFICENT UNDER THE SIXTH IN THE INSTANT CASE.
PRIOR TO THE APPELLANT'S TRIAL AND PRIOR TO THE CO-DEFENDANT'S ENTRY OF A GUILTY PLEA IN CASE NO. 96-CF-938, THE CO-DEFENDANT ATTEMPTED SEVERAL TIMES TO CONTACT THE APPELLANT'S ATTORNEY TO PROVIDE A THIRD PERSON PERPETRATOR WHO COULD HAVE COMMITTED THE CRIME OF ,8/19/96, UNDER THE LEGITIMATE TENDENCY TEST IN THE ABSENCE OF THE DEFENDANT BEING REQUIRED TO ESTABLISH THE GUILT OF THE THIRD PERSON TO THE DEGREE OF CERTAINTY AS A REQUISITE TO SUSTAIN A CONVICTION IN ORDER FOR THIS TYPE OF EVIDENCE TO BE ADMITTED. SEE STATE V. DENNY, 120 WIS. 2D. 614, 357 N.W. 2D. 12 (1984).
THE LEGITIMATE TENDENCY TEST UNDER DENNY, SUPRA, ASKS WHETHER THE PROFFERED EVIDENCE IS SO REMOTE IN TIME, PLACE OR CIRCUMSTANCES THAT A DIRECT CONNECTION CANNOT BE MADE BETWEEN THE THIRD PERSON AND THE CRIME. AS LONG AS THE MOTIVE, AND THE OPPORTUNITY HAS BEEN SHOWN AND AS LONG AS THERE'S SOME EVIDENCE TO DIRECTLY CONNECT A THIRD PERSON TO THE CRIME CHARGED ON 8/19/ 96, WHICH IS NOT REMOTE IN TIME, PLACE OR CIRCUMSTANCES, THE EVIDENCE 'SHOULD BE ADMISSIBLE.
THE CO-DEFENDANT, DERRICK HOWARD ON 1/15/2008 EXCUTED AN AFFIDAVIT TO THE FOLLOWING:
IN THE MORNING OF 8/19/96, ME AND HEAD (LADELLE BOGAN (A:117-118), PULLED UP TO 12TH AND GRAND. SOME GUYS BEGIN TO SHOOT IN OUR DIRECTION AFTER BEING FIRED UPON FIRST I SEEN HEAD (A:117-118) FIRE BACK WITH A GUN IN HIS LEFT HAND FROM THE DRIVER'S WINDOW. I GOT OUT OF THE CAR AND BEGIN TO RUN IN THE OPPOSITE DIRECTION. A GUY BEGAN TO SHOOT AT ME AND THAT'S WHEN I BEGAN TO RETURN FIRE. AFTER SEEING MR. JOHNSON'S LAWYER IN RACINE COUNTY JAIL, I TRIED TO TALK TO HIM ABOUT HEAD (LADELLE BOGAN: A:117-118) WAS THE ONE WITH ME WHOSE A FRIEND OF 'MY BROTHER. HEAD (LADELLE BOGAN: A: 117-118,) WAS GOING TO SAY HE WAS AT THE MOVIES ON THE DAY AND THE MORNING OF 8/19/96 AS HIS ALIBI. I AND MY BROTHER . ' WAS READY TO PROVIDE THIS INFORMATION TO MR. JOHNSON'S LAWYER. (A:116) (EMPHASIS ADDED)
THE DENNY LEGITIMATE TENDENCY TEST APPLIES TO THE DEFENDANT'S TRIAL; AND, NOT TO THE AFFIDAVIT OF THE APPELLANT'S CO-DEFENDANT ON 1/15/2008
ON 2/4/08/ THE CO-DEFENDANT PROVIDED CONSISTENT INFORMATION TO DR. KENNETH H. SMAIL, PHD. ABPQ (A:122), IN THE FOLLOWING MANNER:
"FURTHER HE SAID HE WANTED TO TESTIFY ON BEHALF OF MR. JOHNSON, NOT AGAINST, AS HIS OBSERVATIONS WAS THAT MR. JOHNSON WAS NOT PRESENT WHEN HIS OFFENSE OCCURRED." (A:121) (EMPHASIS ADDED)
LADELLE BOGAN STATED THAT HE WAS IN FACT AT THE SCENE OF THE CRIME AND ' THE REASON THAT HE "COULD NOT SEE THE DRIVER OF THE CAR (A:118) IS BECAUSE HE WAS THE DRIVER OF THE CAR, RATHER THAN THE APPELLANT. (A:116) .
THE CO-DEFENDANT DID NOT WANT TO TESTIFY UNDER THE CONDITIONS IN HIS OWN CASE OR AT THE CASE IN CASE NO. 96-CF-940 BECAUSE HIS ATTORNEY ADVISED HIM NOT BECAUSE ANY FURTHER INFORMATION HE GAVE WOULD POSSIBLY ENHANCE HIS SENTENCE IN HIS OWN CASE. (A:123-128: 133:134-137: 8-9)
THE QUESTION IN THIS CASE IS WHETHER THERE'S INEFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO INFORM HIMSELF OF A DEFENSE PROVIDED BY DENNY, SUPRA, AND WHERE HE FAILED TO INVESTIGATE THE FACTS IN RESPECT TO A DENNY-DEFENSE AS A POTENTIAL DEFENSE, WHEN THE RECORD INDICATES THAT HAD THESE FAILURES NOT OCCURRED, THE TRIAL JUDGE, AFTER A PROPER EVALUATUION OF THE RECORD, COULD'VE BEEN IMPELLED TO INSTRUCT THE JURY IN RESPECT TO A DENNY DEFENSE, AND THE JURY COULD'VE RETURNED A VERDICT BASED ON THE DENNY DEFENSE. STATE V. FELTON, 110 WIS. 2D. 485, 503, 329 N.W. 2D. 161 (1983).
THOMAS AVERY, A STATE KEY WITNESS FOR THE STATE TOLD LAW ENFORCEMENT THAT THE DEFENDANT WAS THE DRIVER OF THE CAR UTILIZED IN THE COMMISSION OF THE OFFENSE ON 8/19/96, AS A RESGESTAE WITNESS (A:142-146), BUT DURING THE TRIAL HE ADMITTED THAT HE HAD LIED TO THE POLICE AND THAT HE HAD ACTUALLY HEARD THROUGH OTHER PEOPLE AS HEARSAY WITHIN HEARSAY. (A;147-157: 158:11-18: 159:1-11: 160:12-21). THE ONLY REASON THAT AVERY THOMAS POINTED A FINGER AT THE DEFENDANT IS: ALLEGED OF A PROBLEM, A COUPLE DAYS PRIOR TO THE INCIDENT OF 8/19/96, CONSTITUTING UNSPECIFIED RATIONAL FOR HIS PREVARICATION TO THE POLICE INVOLVING THE DEFENDANT AS THE DRIVER OF THE CAR ON 8/19/96. (A;189;2-5) .
IF THE TRIAL COURT WOULD'VE PERMITTED THE DEFENDANT TO CONDUCT A MACHNER HEARING ,STATE V. MACHNER, 92 WIS. 2D. 797, 805-806 (1979) ON 3/3.1/08 ,RATHER THAN BARRING THE DEFENDANT BECAUSE HE DID NOT PURSUE A DIRECT APPEAL (A: 111:15-19), DEFENSE COUNSEL WOULD'VE HAD TO ANSWER TO HIS TRIAL STRATEGIES AS TO WHY HE FAILED TO PURSUE THE DENNY DOCTRINE IN THE CASE AT HAND.
THE COURT HELD IN STRICKLAND V. WASHINGTON, 466 U.S 668, 104 S.CT. 2052 (1984) THAT THE BENCHMARK FOR JUDGING ANY CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL MUST BE WHETHER COUNSEL'S CONDUCT SO UNDERMINDED THE PROPER FUNCTIONING OF THE ADVERSARIAL PROCESS THAT THE TRIAL IN THE CASE CAN'T BE RELIED ON AS HAVING PRODUCED A JUST RESULT, BECAUSE DEFENSE COUNSEL HAS A DUTY TO MAKE REASONABLE INVESTIGATIONS, AND TO MAKE A REASONABLE DECISION IN RESPECT TO THE DENNY DEFENSE, WHICH THE RECORD REFLECTS THAT A DENNY DEFENSE WAS NOT A STRATEGIC DEFENSE OR CHOICE IN THE CASE AT HAND. ID.
IN SUM, THE COURT HELD IN STATE V. THIEL, 264 WIS. 2D. 571, 665 N.W. 2D. 305 (2003), THAT IN A FELONY CASE WHEN THE CLIENT FACES SIGNIFICANT PRISON TIME, IT FALLS BELOW THE OBJECTIVE STANDARD OF REASONABLENESS IN THE FAILURE OF AN ATTORNEY TO INVESTIGATE ALL AVENUES OF DISCOVERY THAT MAY HAVE THE POTENTIAL TO EDUCE.INFORMATION THAT'S EITHER BENEFICIAL OR DAMAGING TO THE CLIENT'S CASE, AND WOULD PROVIDE CRITICAL INFORMATION IN RESPECT TO A DENNY DEFENSE, AND INSIGHT TO OTHER FACETS OF THE CASE THAT DESERVE A MORE THOROUGH INVESTIGATION. ID.
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FOOTNOTE 1: IT SHOULD BE NOTED THAT THE RACINE POLICE DEPT.' LABORATORY REPORT ON 9/5/96, COMPARED LATENT FINGER PRINTS OF JOHNSON TO THE ' GUNS UTILIZED IN THE COMMISSION' OF THE OFFENSE AND 'NO MATCHES NOTED,' (A:129) SIGNIFYING EXCULPATATING EVIDENCE THAT DEFENSE COUNSEL DID NOT USE DURING THE TRIAL IN CASE NO. 96-CF-938 WHICH THE TRIAL RECORD WILL SUPPORT. IT WAS ALSO TESTIFIED TO BY A FORENSIC EXPERT THAT THERE WERE NO IDENTIFIABLE FINGERPRINTS ON THE WEAPONS UTILIZED IN THE COMMISSION OF THE OFFENSE. (A:130-131. )
FOOTNOTE 2: TYRONE SMITH, ANOTHER STATE KEY WITNESS FOR THE STATE SCRIBED A HALOGRAPHIC STATING STATE WITNESSES, KENNEDY BARBER NOR CHISTOPHER COSEY WERE NOT PRESENT WITH SMITH WHEN THE INCIDENT TOOK PLACE ON 8/19/96/ DATED: 11/28/2007. (A;138) WHEREAS, ON 8/19/96, HE TOLD POLICE THAT BARBER AND COSEY WERE PRESENT WITH HIM ON 8/19/96. (A:139) BARBER AND COSEY HAD TESTIFIED AT THE DEFENDANT'S TRIAL THAT THEY SAW JOHNSON AS THE DRIVER OF THE CAR ON 8/19/96. SMITH ALSO TOLD POLICE THAT HE DID NOT SEE THE DRIVER OF THE CAR (A:141).
