COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 9, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
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No. 95-1580-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL DIRKES,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Barron County: EDWARD R. BRUNNER, Judge.
Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Daniel Dirkes appeals his two convictions
for delivery of marijuana and cocaine, after a trial by jury. On appeal, he argues that his trial counsel
provided ineffective representation by failing to investigate and subpoena two
witnesses, Susan Olson and Brian Block.
These witnesses allegedly would have corroborated Dirkes' and his wife's
testimony. According to their testimony,
the drug buyer and police informant, Larry Olson, admitted to them that he
purchased drugs from Block, not Dirkes.
Dirkes claims that the uncalled witnesses, Block and Susan Olson,
would have corroborated Dirkes' and his wife's claims about Larry Olson's
inconsistent statement. Susan Olson is
Larry Olson's wife and Dirkes' wife's sister.
Dirkes also claims that his trial counsel should have obtained a copy of a
memorandum by Block's investigator documenting another statement by Larry Olson
about the Block drug transaction. We
see no ineffective assistance of trial counsel and therefore affirm Dirkes'
convictions.
Courts use a two part
process to determine whether an accused received ineffective assistance of
counsel. Strickland v. Washington,
466 U.S. 668, 687 (1984). First, the
accused must show that his trial counsel's performance was deficient. Id. Second, the accused must show that the deficient performance
prejudiced his defense. Id. The second component requires a showing that
trial counsel's errors were so serious they deprived the accused of a fair
trial. Id. Postconviction courts measure counsel's
performance against the standard of a reasonably competent attorney, an
objective standard of reasonableness. Id.
at 687-88. In order to show prejudice,
an accused must demonstrate that there is a reasonable probability that but for
counsel's unprofessional errors, the result of the proceeding would have been
different. Id. at
694. For the following reasons, we are
satisfied that none of Dirkes' claims meet the Strickland
criteria.
Dirkes showed no
ineffectiveness in his trial counsel's failure to call Block as a witness. Dirkes has never claimed that Block had any
knowledge of Larry Olson's alleged inconsistent statement to the Dirkeses. It was Larry Olson's alleged disclaimer of
having a drug transaction with Dirkes that was the focal point of Dirkes'
challenge to his conviction. The fact
that Larry Olson may have bought drugs from Block did not tend to show, by
itself, that Larry Olson disclaimed a drug transaction with Dirkes. In fact, Larry Olson testified at trial that
he bought drugs from both Block and Dirkes.
Further, when called to the stand in the postconviction hearing, Block
asserted the Fifth Amendment privilege. It is speculation to suggest that Block had any exculpatory
testimony and that Block's nonappearance was prejudicial.
Dirkes also showed no
ineffectiveness by his trial counsel's failure to call Susan Olson as a
witness. Trial counsel explained that he
expected Susan Olson to testify in support of her husband. In the absence of contrary evidence, this
rationale reflected a reasonable trial strategy. Dirkes has provided no information suggesting that trial counsel
had reason to believe before trial that Susan Olson would contradict her
husband and testify that her husband had disclaimed having a drug transaction
with Dirkes. Further, when called to
the stand at the postconviction hearing, Susan Olson furnished no exculpatory
testimony and basically denied knowledge of the matter. Her nonappearance at trial was not
prejudicial.
Dirkes similarly showed
no ineffectiveness by his trial counsel's failure to obtain and introduce
a memorandum written by an investigator who represented Block. According to the memorandum, Larry Olson
told the investigator that he purchased drugs from Block on February 12,
1993. This is the same date Larry Olson
testified he purchased drugs from Dirkes.
There is no evidence that Block overheard Larry Olson's disclaimer of a drug
transaction with Dirkes. Moreover, the
memorandum failed to show that Larry Olson purchased drugs exclusively from
Block in February 1993. The
investigator did not report that Larry Olson denied purchasing drugs from
Dirkes. The investigator's memorandum
was therefore not critical to Dirkes' defense.
Larry Olson's statement referred only to Block's marijuana sales. It did not mention cocaine and therefore did
not repudiate his testimony on that point.
Last, even if we assume
arguendo that Block, Susan Olson, and the investigator's memorandum would have
furnished relevant, admissible evidence on the issue of Larry Olson's alleged
inconsistent statement, this evidence would not have met the Strickland
prejudice prong. This evidence was
cumulative to other evidence at trial.
Dirkes' trial counsel cross-examined Larry Olson about his alleged
inconsistent statement and the alleged purchase from Block. Larry Olson denied making the
statement. He also testified that he
purchased drugs from both Dirkes and Block on different occasions. Moreover, both Dirkes and his wife testified
about Larry Olson's prior inconsistent statement. Their testimony and Larry Olson's presented the issue to the jury
and rendered Susan Olson's and Block's testimony nonessential, in terms of the Strickland
prejudice prong. In sum, Dirkes has not
demonstrated that his trial counsel furnished him ineffective representation.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.