News

2009AP472 State v. David J. Balliette
In this case, the Supreme Court is asked to examine the analysis governing claims of ineffective assistance of post-convictions counsel, based on counsel’s failure to argue an issue. 

Some background: In 2000, following a four day trial, a jury convicted David J. Balliette of homicide by the intoxicated use of a motor vehicle and homicide by use of a motor vehicle with a prohibited blood-alcohol concentration. Also, upon his no contest plea, Balliette was convicted of operating after revocation.

The charges arose from the 1999 death of Michele Thein, who was killed instantly when Balliette’s pick-up truck struck her car as she was making a left turn into her driveway.  Balliette had been traveling behind Thein and was attempting to pass her on the left when the accident occurred. Balliette’s blood alcohol tested 0.183 percent two hours after the crash.

At trial, the state presented 17 witnesses, including an accident reconstruction expert who determined that Balliette’s failure to slow down and wait to determine what Thein was going to do was a factor in causing the collision.  The state’s expert testified that Balliette’s version of the accident was impossible because, contrary to Balliette’s claim that Thein had braked hard without warning and turned, her vehicle did not leave skid marks.

Balliette, the only defense witness, claimed that despite his intoxication, he had exercised due care.  He stated that Thein failed to use her turn signal and braked suddenly while pulling to the right, leading him to believe she was allowing him to pass.  He said he slammed on his brakes, which locked the wheels causing him to skid, and the right front corner of his truck struck Thein’s car near the rear driver’s side wheel, forcing both vehicles into the ditch.  He argued the accident would have occurred even if he were sober.

Nine years after conviction, Balliette filed a pro se Wis. Stat. § 974.06 motion claiming, among other things, that post-conviction counsel was ineffective for omitting a challenge to trial counsel’s failure to retain an accident reconstruction expert.  The post-conviction court determined the motion was insufficient and denied it without a hearing.  The Court of Appeals disagreed, and concluded the motion provided sufficient objective material fact assertions that, if true, would warrant relief. 

Balliette’s trial counsel did not call an accident reconstruction expert at trial.  The Court of Appeals concluded a remand would be necessary to clarify trial counsel’s reasoning.

In asking the Supreme Court to review the case, the state presents one issue: “Is an evidentiary hearing into the effectiveness of post-conviction counsel required in every case where the § 974.06 motion merely makes the conclusory allegation that post-conviction counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct review?”

The state contends that if the Court of Appeals’ decision is left to stand, it could significantly affect future cases involving claims of post-conviction counsel.

Balliette contends the Court of Appeals determined that the issues ignored by counsel were stronger than those raised, and therefore viable on appeal on claims of ineffective assistance of counsel. From Winnebago County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62).

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Columbia
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Dane
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Eau Claire
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Florence
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Fond du Lac
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Juneau
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Kenosha
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Marathon
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Marquette
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Milwaukee
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Outagamie
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Ozaukee
2009AP168  Seiler v. Schwarz

Racine
2010AP449-CRNM State v. Johnson

Sauk
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Sheboygan
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Walworth
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Waukesha
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Waupaca
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Contact:
Tom Sheehan
Court Information Officer
(608) 261-6640