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  • April 11, 2023

    Failure to Mount Third-Party Perp Defense Not Ineffective Assistance of Counsel

    Defense counsel’s decision to rely on a reasonable doubt defense and not mount a third-party perpetrator defense did not constitute ineffective assistance of counsel, the Wisconsin Supreme Court has held.

    Jeff M. Brown

    A Criminal Defendant And His Attorney Sitting At  A Table In A Courtroom

    April 11, 2023 – Defense counsel’s decision to rely on a reasonable doubt defense and not mount a third-party perpetrator defense did not constitute ineffective assistance of counsel, the Wisconsin Supreme Court has held.

    In State v. Mull, 2023 WI 26 (April 4, 2023), the supreme court held (6-1) that defense counsel’s failure to object to a hearsay statement linking the defendant to the crime did not amount to ineffective assistance of counsel.

    Justice Patience Roggensack wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Ann Walsh Bradley, Justice Rebecca Bradley, Justice Brian Hagedorn, and Justice Jill Karofsky. Justice Rebecca Dallet dissented.

    House Party Shooting

    Early in the morning of March 7, 2015, at a packed house party in Milwaukee, a brawl erupted. During the fight, someone fired a handgun through a closed bedroom door and killed Ericka Walker.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Eyewitness descriptions of the shooter varied widely, although all agreed that he was a Black man who shot with his right hand. Jovan Mull is Black and right-handed.

    One witness, Jalyn Lynch, said he saw Menjuan Bankhead holding a gun at the party. Lynch also told the police that while Bankhead didn’t shoot into the door, he shouted to another person with a gun to shoot through the door.

    Another witness, Vashawn Smyth, told the police that he saw Tyler Harris display a pistol at the party. Additionally, Smyth said, Harris later told him that he had “emptied [his] clip at the party.”

    Reasonable Doubt

    The Milwaukee County District Attorney charged Mull with first-degree reckless homicide.

    At trial, on direct examination by the prosecutor, Cheyenne Pugh testified that other people had told her that Mull was the shooter.

    On cross examination, she testified that someone told her that Mull had been bragging about the shooting and said that “he killed that stud bitch.”

    Defense counsel did not move to strike Pugh’s testimony. The jury convicted Mull.

    Court of Appeals Orders New Trial

    Mull filed for post-conviction relief, arguing that his attorney had provided him ineffective assistance of counsel by failing to mount a third-party perpetrator defense and by failing to object to or move to strike Pugh’s testimony.

    The circuit court denied the motion without a hearing. Mull appealed.

    The Wisconsin Court of Appeals reversed the circuit court and ordered a new trial. The state appealed.

    Obstacles to Third-Party Perp Defense

    In her opinion for the majority, Justice Roggensack explained that a criminal defendant is allowed to present a theory that another person committed the crime so long as it’s grounded in admissible evidence.

    But Roggensack noted that the circuit court had found that mounting a third-party perpetrator defense in Mull’s case was difficult, and she reasoned that that finding was not clearly erroneous.

    Justice Roggensack concluded that Lynch’s testimony that Bankhead was standing outside the closed bedroom door telling someone else to shoot through it led only to an inference that Bankhead told someone else to shoot and was not the shooter himself.

    Additionally, Roggensack concluded, a third-party perpetrator defense focused on Harris would have been undercut by: 1) the fact Smyth didn’t testify that Harris told him that he’d “emptied his clip,” because the state objected to the statement as hearsay; and 2) while another witness picked Harris out of a photo array as someone who had a gun at the party, she didn’t identify him as the shooter.

    Defense Counsel’s Strategy Was Reasonable

    Justice Roggensack concluded that defense counsel’s decision instead to mount a reasonable doubt defense was objectively reasonable.

    She pointed out that defense counsel was assigned to Mull seven months after the shooting.

    “We conclude that drawing attention to discrepancies in the State’s case through vigorous cross-examination of witnesses who appeared was an objectively reasonable trial strategy under the circumstances trial counsel faced,” Roggensack wrote.

    Mull argued that his attorney insufficiently investigated the witness statements. But Justice Roggensack pointed out that defense counsel reviewed 140 pages of witness statements – statements that varied widely.

    If witness statements vary to such a degree that defense counsel concludes that they cast doubt on the State’s case, his or her decision not to investigate the statements can be objectively reasonable, Roggensack concluded.

    Decision not to Object Reasonable

    The court of appeals held that Mull was entitled to a Machner hearing on the issue of the defense counsel’s failure to object to Pugh’s statement.

    But Roggensack concluded that defense counsel’s decision to object Pugh’s statement was consistent with a strategy of attacking the foundation of her testimony.

    “Trial counsel had already objected and been overruled three times during Pugh’s testimony – four if we consider the court’s return to trial counsel’s initial objection,” Justice Roggensack wrote.

    Mull argued that discrediting a witness and moving to strike prejudicial testimony are not mutually exclusive. While that was true, Roggensack noted, it lay beyond the scope of the supreme court’s review.

    “We review whether counsel’s defense strategies were deficient as a matter of law,” Justice Roggensack wrote.

    Dissent: Defense Counsel Should Have Objected

    In her dissent, Justice Dallet argued that the record raised doubts about whether defense counsel or his investigator tried at all to contact several witnesses who would have been integral to a third-party perpetrator defense.

    With regard to the failure to object to Pugh’s statement, Dallet wrote that the prior objections to Pugh’s testimony cited by the majority “were on substantially different grounds to a different line of questioning about a different exhibit that identified a different person as the shooter.”

    Defense counsel should have objected to Pugh’s statement, Justice Dallet argued. And the fact that defense counsel’s reliance on the reasonable doubt defense was objectively reasonable did not excuse the failure, she argued.

    “Defense counsel’s goal is always to discredit the State’s witnesses,” Dallet wrote. “But that cannot mean that an attorney can ignore obvious, highly inflammatory hearsay because his ‘trial strategy’ is to discredit the witness later.”


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