Argument IV and V

Argument IV
DEFENSE COUNSEL'S UNFAMILIARITY WITH §805. 13 (5) ENDORSED THE TRIAL COURT'S ERRONEOUS VIEW OF SAID STATUTE IN ITS FAILURE TO INSTRUCT THE JURY TO REACH A VERDICT BASED ON EVIDENCE RECEIVED AT TRIAL.

DURING JURY DELIBERATIONS, THE JURORS SUBMITTED A NOTE TO THE DESIRING THAT THEY WANTED P.O. HECKEL'S INTERVIEW-THOMAS AVERY AND INV. MICH'S INTERVIEW WITH THOMAS AVERY . (A:166: 2-7)1 THE JUROR'S ALSO DESIRED TESTIMONY READ BACK IN RESPECT TO MR. AND MRS. ROGERS, ALONG WITH CHRIS COSEY'S TESTIMONY (A:166: 9-11).

THE POLICE REPORTS WERE NOT ENTERED AND RECEIVED AS EX­HIBITS, (A:166). THE TRIAL COURT REFUSED TO HAVE THE TESTIMONIES MR. AND MRS. ROGERS AND CHRIS COSEY READ BACK DUE TO 'THE LENGTH OF TIME TO DO SO.

OBVIOUSLY THE JURORS DOUBTED THE CREDIBILITY OF: AVERY, COSEY AND MR. AND MRS. ROGERS WHICH RENDERED A PATENTLY INCONSISTENT VERDICT. A VERDICT THAT'S OBTAINED THAT IS PATENTLY INCON­SISTENT, THEN A TRIAL MUST BE REORDERED BECAUSE THE JURY DID NOT REACH A VERDICT IN CONFORMITY WITH WI-JI-CRIMINAL: ____ 100, 103 AND 140. SEE TERWILLIGER V. KOTKE , 110 WIS. 2D . 86 / 328 N.W. 2D. 481 (1983) .

IF CREDIBILITY OF WITNESSES ARE AT ISSUE AND ARE NOT ABLE TO RECEIVE THE DOCUMENTATION TO RENDER AN IMPARTIAL VERDICT UNDER THE SIXTH AMENDMENT, THE TRIAL COURT IS TO ADMONISH THE JURY TO CONSIDER EVIDENCE ONLY RECEIVED AT TRIAL AND THE LAW AS GIVEN AND FROM THESE ALONE REACH A VERDICT. THE COURT IS TO INSTRUCT THE JURY TO DECIDE THE CASE SOLELY ON THE EVIDENCE OFFERED AND RECEIVED AT TRIAL.

DEFENSE COUNSEL FAILED TO MOVE FOR A MISTRIAL PRIOR TO THE RETURN OF THE VERDICT. SEE STATE V. EDELBURG , 129 WIS. 2D. 394, 400/ 384 N.W. 2D. 724, 727 (1986). WHEREAS, A WAIVED ARGUMENT CAN BE RAISED BY WAY OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM. STATE V. HAYES, 273 WIS. 2D. 1, 54 [114] (2004).

DEFENSE COUNSEL COULD HAVE MOTIONED TO IMPEACH THE VERDICT, BUT HIS NEGLECT TO DO SO RELIEVED THE STATE OF MEETING THIER BURDEN OF PROOF UNDER THE FIFTH AMENDMENT.

ARGUMENT V
TRIAL COUNSEL ERRONEOUSLY VIEWED THE GOOD-CHILD HEARING DEPRIVING THE DEFENDANT OF HIS RIGHT TO TAKE THE STAND IN ORDER TO MAKE A RECORD OF HIS VERSION OF THE FACTS AND CIRCUMSTANCES UNDER WHICH THE DEFENDANT'S STATEMENT WAS GIVEN.

A GOODCHILD HEARING (A:167: 15-25) WAS HELD ON 6/23/98, WHEREIN, P.O. STEVE MICH TESTIFIED UNDER MIRANDA THE PROCEDURE HOW HE READ THE DEFENDANT HIS RIGHTS AND HOW THE DEFENDANT PRO­VIDED HIS VERSION OF HIS ACTIVITIES ON 8/19/96. (A:168-174)

THE TRIAL COURT ASKED OF DEFENSE COUNSEL IF HE WANTED TO CALL ANY WITNESSES, WHEREAS, HE REPLIED, "NO!" (A:174: 21-23) THE TRIAL COURT MADE A FINDING THAT THE STATEMENTS WERE MADE UNDER MIRANDA, AND STATED THEY'RE ADMISSIBLE, IN THE ABSENCE OF FINDING THE STATEMENTS ADMISSIBLE UNDER GOODCHILD. STATE EX, REL. GOODCHILD V. BURKE/ 27 WIS. 2D 244, 133 N.W. 2D. 753 (1965).

THE GOODCHILD COURT HELD THAT "AT A HEARING ON ISSUES, THE TRIAL JUDGE SITTING ALONE SHALL MAKE A DETERMINATION UPON A PROPER RECORD UPON THE ISSUE OF VOLUNTARINESS. THE STATE SHALL HAVE THE BURDEN OF PROVING VOLUNTARINESS BEYOND A REASONABLE DOUBT. AT THE HEARING THE DEFENDANT MAY TAKE THE STAND AND TEST­IFY FOR THE LIMITED PURPOSE OF MAKING A RECORD OF HIS VERSION AND CIRCUMSTANCES UNDER WHICH THE STATEMENT WAS MADE BY DOING SO, THE DEFENDANT DOES NOT WAIVE HIS RIGHT TO TAKE THE STAND IN HIS OWN DEFENSE ON THE TRIAL IN CHIEF. NEITHER DOES HE WAIVE ANY OTHER RIGHTS STEMMING FROM HIS CHOICE NOT TO TESTIFY. " ID. AT 763-64 [10-12].

DEFENSE COUNSEL WAIVED THE DEFENDANT'S RIGHT TO TESTIFY UNDER GOODCHILD (A:174: 21-23), BUT MADE OF RECORD, "CONTESTING THE CONTENTS OF THE STATEMENTS." (175: 2-3) OBVIOUSLY, DEFENSE COUNSEL KNEW BEFORE HAND THAT THE VOLUNTARINESS OF THE DEFEND­ANT'S STATEMENT WAS IN QUESTION. 'THEN THE QUESTION REMAINS: HOW CAN THE TRIAL JUDGE MAKE A DETERMINATION UPON AN IMPROPER RECORD UPON THE ISSUE OF VOLUNTARINESS OF THE DEFENDANT'S STATE­MENT BECAUSE THE STATE USED THE DEFENDANT '.S STATEMENT FALSELY IN ITS ITS CLOSING ARGUMENT TO THE JURY? (SEE A:184: 4-8)

THE FAILURE TO HOLD A PROPER GOODCHILD HEARING ON A QUESTION OF VOLUNTARINESS IS PREJUDICIAL TO THE RIGHTS OF THE DEFENDANT TO HAVE A FAIR TRIAL. SEE LACtAW V. STATE, 41 WIS. 2D. 177, 163 N.W. 2D. 147, 151 (1968).

FOOTNOTE 4: THE STATE IN ITS CLOSING ARGUMENT TOLD THE JURY THAT HE HAD BEEN OPERATING THE CAR AS SOON AS THE MORNING OF THE SHOOTING (A:184: 4-6), WHEREAS, THE DEFENDANT APPRISED INV. MICH ON 10/31/1996 THAT HE OPERATED OR DROVE THE CAR USED IN THE SHOOTING 'THE EVENING PRIOR TO THE SHOOTING.' (A:185) SHOW­CASING THAT DEFENSE COUNSEL KNEW THAT THE STATEMENT OF THE DE­FENDANT WAS INVOLUNTARY, THUS, RESULTING IN THE MINDS OF THE JURORS FROM THE STATE'S FALSE QUOTATION OF THE PRE-TRAIL RECORD (A:185) THAT THE DEFENADNT SUBSTANTIVELY WAS IN THE CAR THE MORNING OF THE SHOOTING ON 8/19/96.


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