COURT OF APPEALS DECISION DATED AND FILED July 16, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Jeremy K. Adeyanju,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Higginbotham, P.J., Dykman and Vergeront, JJ.
¶1 PER CURIAM. Jeremy Adeyanju appeals from a judgment of conviction and from an order denying his motion for postconviction relief. The main issue is ineffective assistance of counsel. We affirm.
¶2 The State alleged that the defendant was one of a number of people who jumped from three vehicles in the street, fired a hail of bullets up a driveway towards a group of people near a garage, and then quickly fled. At trial, the State presented several witnesses who claimed to have been among the shooters, and who testified as to the involvement of the defendant and three other co-defendants tried at the same time. The jury found the defendants guilty on three counts each of attempted first-degree intentional homicide while armed, and three counts each of endangering safety by use of a firearm, under Wis. Stat. § 941.20(2)(a) (2007-08).[1] The jury was instructed on three theories of defendant liability, namely, as direct actors, as aiders and abetters, and as co-conspirators. The jury was not asked to indicate which theory its verdicts were based on, so we do not know which theory or theories it relied on.
¶3 On appeal, Adeyanju argues that his trial counsel was
ineffective. To establish ineffective assistance of counsel a defendant must show
that counsel’s performance was deficient and that such performance prejudiced
his defense. Strickland v.
¶4 Adeyanju argues that his counsel was ineffective as to the homicide counts by not requesting a lesser-included instruction for the offense of recklessly endangering safety. He argues that the instruction was warranted because the jury could reasonably have found that the shooters’ acts did not unequivocally show intent to kill, but would have satisfied the reckless state of mind required for recklessly endangering safety.
¶5 To establish deficient performance, Adeyanju’s argument appears to proceed in these steps: trial counsel had a duty to discuss with Adeyanju whether to request a lesser-included instruction; if that discussion had occurred, Adeyanju would have asked counsel to request the instruction; if Adeyanju had so asked, counsel would have been obligated to request the instruction; and, therefore, counsel’s performance was deficient by not consulting with Adeyanju.
¶6 This argument has two weak links. For the propositions that counsel has a duty
to discuss a lesser-included instruction with the defendant, and that whether
to request the instruction is a decision made by the defendant, Adeyanju cites State
v. Ambuehl, 145
a defendant does not receive ineffective assistance where defense counsel has discussed with the client the general theory of defense, and when based on that general theory, trial counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with, or harmful to, the general theory of defense.
¶7 Adeyanju’s brief acknowledges Eckert in just one
sentence, which states only that we “questioned” whether Ambuehl adopted the
Our reading of the Ambuehl case does not comport with Eckert’s contention. Although Ambuehl does reference and cite this ABA Standard, there is no language within Ambuehl, indicating that this standard was adopted as the law in our state. In fact, in Ambuehl, this court specifically notes that the proposition contained within the commentary to this ABA Standard does not contain any citation to authority.
Eckert, 203
¶8 Adeyanju does not
argue that counsel’s performance was deficient if it is counsel who makes the
decision about whether to ask for a lesser-included instruction. In other words, Adeyanju does not argue that
it was objectively unreasonable for an attorney to forego a lesser-included
instruction on the facts of this case. See State
v. Kimbrough, 2001 WI App 138, ¶¶31-35,
246
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.