COURT OF APPEALS DECISION DATED AND FILED February 10, 2009 David R. Schanker Clerk of Court of Appeals	NOTICE
	This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2008AP301-CR	Cir. Ct. No.� 2006CF232
STATE OF WISCONSIN���			IN COURT OF APPEALS
			DISTRICT III
State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Carle F. Duke, ��������� Defendant-Appellant.

����������� APPEAL from a judgment and an order of the circuit court for Barron County:� JAMES C. BABLER, Judge.� Affirmed.�

����������� Before Hoover, P.J., Peterson and Brunner, JJ.

�1������� PER CURIAM.   Carle Duke appeals from a judgment of conviction for two counts of delivery of cocaine and an order denying postconviction relief.� Duke claims he is entitled to a new trial because his trial counsel failed to impeach the State�s key witness with his multiple prior convictions.� We conclude Duke has not established he was prejudiced by any deficient representation. �Accordingly, we affirm.

Background

�2������� A criminal complaint charged Duke with two counts of delivery of cocaine, contrary to Wis. Stat. � 961.41(1)(cm)1r.[1]� A third count of delivery of cocaine was added after the preliminary hearing.

�3������� Confidential informant David Diehl testified at trial he made three separate cocaine purchases from Duke.� The first was an uncontrolled buy at Duke�s residence on July 11, 2006.� Barron County Sheriff�s Department Detective Jason Hagen had provided Diehl with the purchase money.� Hagen subsequently drove by Duke�s residence, where he observed Diehl�s vehicle.� A short time later, Diehl met Hagen and turned over the cocaine.

�4������� The second and third purchases were controlled buys, occurring on July 12 and 14, 2006.� Diehl was once again provided with the purchase money, but, in addition, he was searched prior to the buy. �He was also �wired,� monitored by police, and provided a vehicle that had also been searched.� Two police vehicles were used to conduct surveillance; one followed Diehl to and from Duke�s residence and the other monitored and recorded Diehl�s conversations.� After each purchase, Diehl turned cocaine over to Hagen.

�5������� Hagen testified that he monitored the two controlled buys.� Regarding the July 12 purchase, he testified that after Diehl arrived at Duke�s residence, Duke subsequently left on foot for a brief period of time.� When Duke returned, �that�s when he gave him the cocaine.�� Hagen also testified Duke had unexpectedly raised the price of the cocaine, which was referred to as �nose candy.��

�6������� A recorded phone call was placed to Duke prior to the controlled buys to confirm the drug deals.� Prior to the July 14 buy, Duke told Diehl to wait fifteen to twenty minutes.� Hagen testified he �didn�t remember for sure,� but he believed �it was because he said the cocaine wasn�t there yet, like he was still waiting for it to come to his house.�� After Diehl went to the residence, Duke again left for about a half hour.� When Duke returned, Diehl weighed the cocaine with a digital scale the detectives had provided and discovered the cocaine was �light.�� Duke used Diehl�s cell phone to contact his source.� Either there was no answer or Duke pretended there was no answer and he then told Diehl he would make it up to him next time.� After some further discussions about a future deal for a larger purchase, Diehl left and drove back to the Barron County Justice Center where he turned over the cocaine.

�7������� Deputy Ron Baures testified he questioned Duke about his contacts with Diehl.� �Duke denied selling Diehl cocaine, but stated that on one occasion he took money from Diehl, gave the money to a source and provided cocaine to Diehl.� Duke did not indicate when that event occurred and refused to provide additional information.

�8������� Duke did not testify at trial and the defense rested without calling witnesses.� Duke was convicted on all three counts and sentenced to three years� initial incarceration and three years� extended supervision, consecutive to another unrelated sentence Duke was then serving.

�9������� Duke moved for postconviction relief, arguing he was deprived of effective assistance of counsel because his trial counsel did not impeach Diehl with Diehl�s prior convictions.� The State provided documents to counsel during discovery that established Diehl had multiple criminal convictions, including conspiracy to smuggle aliens, illegal transportation of aliens, and robbery in 1981; possession of burglarious tools and burglary in 1986; two counts of manufacturing or delivery of THC in 1997; and disorderly conduct in 2001 and 2004.[2]

�10����� At the first hearing on Duke�s postconviction motion, the State agreed it provided Diehl�s criminal record to trial counsel, and stipulated the failure to impeach him with his criminal record was an oversight on counsel�s part and she had no strategic reason for not impeaching Diehl with the prior convictions.� Due to the State�s stipulation, trial counsel did not testify and the Machner[3] hearing that had been scheduled was converted into argument on the legal ramifications of the oversight.� The circuit court ultimately agreed with Duke that counsel�s performance was deficient, and the matter was set over for additional argument on the prejudice prong.

�11����� At the second hearing, the court ordered a new trial on count one, the uncontrolled buy.� The court stated count one �almost revolved entirely on the testimony of Mr. Diehl.�� The court concluded:

I did not know that Mr. Diehl had any criminal convictions, but had that been argued, I�m not saying the result would have been different, but it could have been different.� But it�s just not reliable.�

But I have to tell you, Counts 2 and 3 were markedly different at trial than Count 1.� And that�s why it was in stark contrast.

   �.

All I know is what I heard, the same thing the jury heard, which at the time was the officer�s statements regarding what he heard.� But knowing that � And the jury, I would have to say, jurors would have to know or assume that people buying drugs often have criminal convictions.� But it goes to their credibility.

So knowing that the officer listened to the wire, heard the conversations, corroborates the conversations.� I find that the conversations on Counts 2 and 3 are reliable and that the defense has not met its burden on those two counts.� But I am ordering a new trial on Count 1, if the State so wishes to try that.

The State then reopened and dismissed count one.� Duke appeals from the order denying a new trial on counts two and three.� ���

Discussion

�12����� To maintain an ineffective assistance of counsel claim, the defendant must show that trial counsel�s performance was deficient, and the deficient performance prejudiced the defense. �Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Roberson, 2006 WI 80, �24, 292 Wis. 2d 280, 717 N.W.2d 111.� To establish deficient performance, the defendant must show that counsel�s representation was below objective standards of reasonableness.� See State v. McMahon, 186 Wis. 2d 68, 80, 519 N.W.2d 621 (Ct. App. 1994).� To establish prejudice, the defendant must show �a reasonable probability that, but for counsel�s unprofessional errors, the result of the proceeding would have been different.�� Strickland, 466 U.S. at 694.� The focus of the inquiry �is not on the outcome of the trial, but on �the reliability of the proceedings.��� State v. Thiel, 2003 WI 111, �20, 264 Wis. 2d 571, 665 N.W.2d 305 (citation omitted).� If this court concludes the defendant has not proved either the deficiency or prejudice prong, we need not address the other prong.� Strickland, 466 U.S. at 697.� The circuit court�s findings of fact will be upheld unless clearly erroneous.� State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985).� But proof of either the deficiency or prejudice prong is a question of law we decide independently.� Id.� ���

�13����� Duke acknowledges the controlled nature of the drug buys in counts two and three, together with the monitoring and surveillance accompanying those incidents, made the State�s case against Duke �stronger� as to those counts.� Nevertheless, Duke insists the failure to impeach Diehl on his prior multiple criminal convictions �rendered the result of this trial unreliable, despite the corroboration provided by the testimony of Detective Hagen.�

�14����� However, even if the jury had heard Diehl was convicted of multiple prior crimes, it still would have heard overwhelming evidence of Duke�s guilt.� Before setting up the second meeting to purchase cocaine, Diehl went to the sheriff�s department and telephoned Duke on a recorded line to confirm the drug transaction.� Hagen then searched Diehl and gave him a transmitter, as well as the money to make the drug buy.� While Diehl was at Duke�s residence, two police vehicles conducted surveillance.� One police vehicle was used to follow Diehl and the other was equipped with an audio receiver to record the transaction.� Hagen heard a conversation between Duke and Diehl in which they used the term �nose candy� and Duke was heard increasing the price for the cocaine.� After the transaction, Hagen met Diehl at the sheriff�s office, where Diehl turned over a package of cocaine.�

�15����� Two days later, Diehl participated in another controlled buy.� Diehl again telephoned Duke from the sheriff�s office and the call was recorded.� Diehl was again searched, wired, and given the money for the purchase.� The police again sent two surveillance vehicles to monitor the transaction.� Duke again left the residence, returning a short time later. �Diehl then weighed the cocaine and told Duke it was light.� Duke told Diehl he would make up the difference next time.� Hagen heard Duke and Diehl discuss future transactions for larger quantities.� Diehl left and drove to the sheriff�s office where he turned over the cocaine he just purchased. �The jury also heard detective Baures testify Duke subsequently provided a statement that admitted he provided cocaine to Diehl, although he denied selling Diehl cocaine.�

�16����� We are not persuaded the failure to impeach Diehl with his prior convictions deprived Duke of a reliable verdict.� Diehl�s testimony was corroborated by the testimony of Hagen and Baures, and also by the circumstances surrounding the surveillance and audio recordings of the multiple transactions.�

�17����� Duke argues Hagen testified that, during the telephone call to Duke prior to the first controlled buy, he could not positively identify Duke�s voice.� However, Hagen testified that although �at the time I really couldn�t say for sure� � it sounded like his voice.�� Moreover, Hagen testified he was familiar with Duke�s voice from prior contact, and there is no indication Hagen had difficulty identifying Duke�s voice while monitoring the drug buys. �

�18����� Duke also argues that although Hagen was listening to what occurred inside Duke�s house, he did not personally witness Duke giving the cocaine to Diehl.� However, Duke underplays the significance of the controlled nature of the drug buys.� There was no evidence of other individuals present in Duke�s residence during the transactions, and the on-the-scene remarks overheard by Hagen amply corroborated Diehl�s testimony that Duke sold the cocaine.� �������

�19����� We conclude Duke has not demonstrated the prejudice necessary to establish that his trial counsel provided ineffective assistance for failing to impeach Diehl with his prior criminal convictions.� The circuit court did not err in denying the motion for a new trial on counts two and three.

����������� By the Court.�Judgment and order affirmed.

This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.

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[1]  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

[2]  The circuit court did not specifically rule on whether all of Duke�s prior convictions could have been used, stating, �some of those may be remote.�� The court did state, however, �at least some of those would have been allowed in for purposes of impeachment.�

[3] State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).