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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
December 22, 1998
A party may file with the Supreme Court a
                                                                                     Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                     Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                     of Wisconsin              STATS.
No.                                                                                  97-2435-CR
STATE OF WISCONSIN                                                                   IN COURT OF APPEALS
                                                                                     DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
WILLIAM E. CONLEY,
DEFENDANT-APPELLANT,
CHARLES E. CONLEY,
DEFENDANT.
APPEAL  from a judgment and  an order  of  the circuit court for
Milwaukee County:   DAVID A. HANSHER, Judge.   Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
PER CURIAM.    William E. Conley appeals from a judgment of
conviction after a jury found him guilty of attempted first-degree homicide, party




No. 97-2435-CR
to a crime and attempted armed robbery, party to a crime, and from an order
denying him postconviction relief.   He claims that trial counsel was ineffective for
failing to investigate his theory of defense and failing to present available expert
testimony in support of it.   We affirm.
I. BACKGROUND.
On October 9, 1991, Conley entered a Citgo Quick Mart in the city
of Milwaukee with his brother.    Conley shot the clerk and attempted to take
money from the cash register and the store safe while his brother acted as the
lookout.   Both then fled.   The victim, who was shot in the chest, survived and,
although significantly disabled because of the shooting, identified Conley in a
police line-up and again at trial.   This identification was corroborated by others
who witnessed Conley leaving the station immediately after the shooting.   The
Quick  Mart’s  surveillance  system  also  recorded  the  incident  on  a  time-lapse
camera.
The eight-millimeter tape from the security camera at the gas station
was viewed by police investigators at the scene and taken into custody.   Because
the eight-millimeter tape was not a tape size used by the police department and the
police  did  not  have  facilities  to  view  the  tape,  a  reproduction  was  made  by
recording the incident from the gas station monitor onto a VHS videotape.
Conley was apprehended in Akron, Ohio in April 1992, and tried in
December 1994.   Before trial, Conley’s initial attorney obtained a court order for a
medical examination of Conley in order to support a defense of not guilty by
reason  of  mental  disease  or  defect.    That  attorney  withdrew,  apparently  at
Conley’s request, because Conley disagreed with his attorney’s advice.   Attorney
Dennis Cimpl was then appointed and served as Conley’s attorney throughout the
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No. 97-2435-CR
trial and sentencing hearing.   Although Cimpl remained Conley’s attorney, on the
first day of trial, Cimpl informed the court that Conley wanted him to withdraw as
counsel.   He claimed that Conley wanted new counsel because Cimpl would not
assert a defense of not guilty by reason of mental disease.   Cimpl explained that he
investigated this defense and discovered that the doctor who had been appointed to
examine Conley could offer no support.   Cimpl related that the previous attorney
had found no basis to go forward with such a defense either.    The trial court
denied  the  request  to  withdraw,  finding  that  Conley’s  request  to  hire  a  new
attorney was dilatory.   The trial proceeded and a jury found Conley guilty of both
counts.
Conley then appealed and a no merit report was submitted by his
appellate counsel, which was rejected by this court with the directive that appellate
counsel move for postconviction relief pursuant to RULE 809.30 STATS., on the
grounds of ineffective assistance of counsel.   At the postconviction hearing, the
trial court held a Machner1 hearing and postconviction relief was denied.   Conley
now  appeals,  claiming  counsel  was  ineffective  for  failing  to  investigate  and
present  testimony  to  support  a  defense  that  the  shooting  was  accidental.    In
furtherance of his contention, he claims that trial counsel should have called an
expert to testify to technical difficulties involved in the police reproduction of the
eight millimeter tape because he believed the original video would have revealed
that he was suffering from psychomotor agitation which resulted in involuntary
muscle movements which caused the shooting.   Conley further asserts that trial
counsel was deficient for failing to call as a witness a psychologist who examined
1  See State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (1979).
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No. 97-2435-CR
Conley prior to the shooting and who could have testified that alcohol and drug
withdrawal can result in psychomotor agitation.
II. ANALYSIS.
The familiar two-pronged test for ineffective assistance of counsel
claims requires defendants to prove (1) deficient performance and (2) prejudice.
Strickland  v.  Washington,  466 U.S.  668,  686  (1984);  State  v.  Johnson,  133
Wis.2d 207, 216-17, 395 N.W.2d 176, 181 (1986); see also State v. Sanchez, 201
Wis.2d 219, 236, 548 N.W.2d 69, 76 (1996) (holding Strickland analysis applies
equally to ineffectiveness claims under state constitution).    To prove deficient
performance, a defendant must show specific acts or omissions of counsel which
were “outside the wide range of professionally competent assistance.”   Strickland,
466 U.S. at 690.   A defendant will fail if counsel’s conduct was reasonable, given
the facts of the particular case, viewed as of the time of counsel’s conduct.   See id.
We will “strongly presume” counsel to have rendered adequate assistance.   Id.
Additionally,  counsel  will  not  be  found  to  be  deficient  for  failing  to  make
meritless motions or arguments.   See State v. Toliver, 187 Wis.2d 346, 360, 523
N.W.2d 113, 118 (Ct. App. 1994).   On appeal, the trial court’s findings of fact will
be upheld unless they are clearly erroneous.   See State v. Pitsch, 124 Wis.2d 628,
634,  369 N.W.2d  711,  714  (1985).    But proof of either the deficiency or the
prejudice prong is a question of law which this court reviews de novo.   See id. at
634, 369 N.W.2d at 715.   If this court concludes that the defendant has not proven
one prong, we need not address the other.   See Strickland, 466 U.S. at 697.
A. Theory of Defense.
Conley  asserts  that  his  attorney  was  ineffective  for  failing  to
investigate his contention that the shooting was accidental.    Conley essentially
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No. 97-2435-CR
claims that due to psychomotor agitation, or involuntary muscle movements of his
fingers in this case, the gun went off by accident.   However, this was not the
defense Conley wished to pursue at trial.   Initially, Conley did not admit to the
shooting.   In fact, it was not until the day of trial that Conley admitted to counsel
that he was the shooter.   The defense that Conley originally demanded—not guilty
by  reason  of  mental  disease  or  defect—was  also  inconsistent  with  Conley’s
repeated claim that he was not the shooter.    Cimpl indicated at the Machner
hearing that he had nothing to support the defense of not guilty by reason of
mental  disease  or  defect,  nor  could  other  defenses  be  developed  because  of
Conley’s  repeated  refusal  to  communicate  with  him.    Cimpl  testified  that  he
explored the possibility that the shooting was accidental, but Conley refused to
admit he was the shooter or discuss such a defense.   Given Conley’s actions, we
conclude Cimpl went forward with the best defense possible when, in opening
statement, he asserted that Conley did not commit the crime because he was not
there, but if the jury found he was there and was the shooter, he urged them to find
that Conley did not intentionally shoot the victim.   Under these circumstances,
defense counsel’s actions and the election of defenses were not “outside the wide
range of professionally competent assistance.”   Strickland, 466 U.S. at 690.
B. Videotape testimony
Conley claims that a reproduction of the original eight-millimeter
tape would show images of the shooting more accurately as they related to time
lapse and would have supported his defense of an accidental shooting.   Conley
asserts his attorney was ineffective because an expert was available and should
have  explained  and  shown his copy of  the  reproduced videotape.    As  noted,
Conley did not admit to trial counsel that he was the shooter until the trial began;
thus,  Conley  prevented  trial  counsel  from  effectively  pursuing  a  defense  of
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No. 97-2435-CR
accidental shooting because Conley made the decision to deny shooting the victim.
Moreover, Conley’s refusal to discuss the events of the shooting with his attorney,
only insisting on a not guilty by reason of mental disease or defect theory of
defense,  made  the  defense  of  an  accidental  shooting  unlikely to  succeed  and
foreclosed any possibility of retaining an expert to support the theory.   It was only
at trial, after the trial had begun, that his attorney learned of Conley’s change of
heart.   Nevertheless, as the trial court stated in its postconviction decision, the
failure to call a video expert at trial was not deficient performance because the
reproduced tape now advanced by Conley would have been more helpful to the
State than to the defense Conley now wishes he had undertaken.
Defendant’s [video] expert admitted that images from the
original  source                                                                          …  were  not  capable  of  exhibiting  or
displaying whether a person was trembling … I find a jury
could not determine whether or not there was any hand
trembling from the tape that was presented by the defense
saying this is the tape that the [sic] — Mr. Cimpl should
have brought into court with this expert and explained it.   I
looked at it, in fact I thought the tape clear — more clearly
showed the defendant doing the shooting, identified him
more clearly, and I understand why Mr. Cimpl wanted to
keep it out.
We note, too, that Cimpl made an attempt to keep the videotape
from  being  seen  by  the  jury.    He  made  a  motion  to  exclude  the  videotape
altogether, but it was denied by the trial court.   Cimpl then urged the trial court to
have only the original eight millimeter tape viewed by the jury, arguing that the
reproduction “distorts what actually went on there.”   This request was also denied
by the trial court.
Conley also argues that the reproduction of the tape shown to the
jury does not show the actual time that elapsed during the shooting, but he fails to
discuss how this affected the outcome of his case.   We conclude this argument is
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No. 97-2435-CR
specious because, as the trial court pointed out in its postconviction decision, the
reproduction of the tape that was shown to the jury included the original time
monitor which showed the actual time elapsed during the robbery, permitting the
jurors to keep track of the time involved.
In sum, none of Cimpl’s conduct cited by Conley with respect to the
videotape was deficient.   Trial counsel attempted to exclude the tape.   His failure
to call a video expert was due to Conley’s actions and, had he called one, the
expert would not have supported Conley’s theory as the video expert who testified
at the Machner hearing explained that hand trembling could not be discerned from
either tape.   Finally, the actual time lapse was shown by the time monitor on the
reproduction.
C. Testimony of Psychologist
Conley claims that he was also denied effective assistance of counsel
because trial counsel failed to call a psychologist, Dr. Paquette, who examined
Conley prior to the shooting for an unrelated matter and issued a report concluding
that Conley suffered from alcohol and drug withdrawal which caused psychomotor
agitation.   Conley argues that Dr. Paquette would have testified that he observed
“psychomotor agitation” in Conley, and that Dr. Paquette’s testimony that “it was
likely that Mr. Conley would have continued to suffer from psychomotor agitation
at the time of the shooting” would have been crucial to his defense.   Conley is
wrong.   Dr. Paquette testified at the Machner hearing that he never personally
viewed Conley suffering from hand tremors; he included it in his report only
because Conley complained of it.   Further, Dr. Paquette testified he had no way of
knowing whether Conley suffered from this problem on the day of the robbery.
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No. 97-2435-CR
Dr. Paquette speculated that had Conley been withdrawing from alcohol and drugs
on the day of the crime, it was likely that the psychomotor agitation would persist.
The trial court found, and we agree, that “Dr. Paquette’s testimony
would be speculative and irrelevant” as to whether Conley suffered psychomotor
problems on the day of the crime.   First, Dr. Paquette could not testify that Conley
was having psychomotor agitation on the date in question.   In fact, Dr. Paquette
had never actually seen any psychomotor agitation in Conley.   Second, Conley
never complained or testified about the tremors causing the shooting until after
trial.   Third, Conley confessed to have been consuming beer and cocaine on the
day of the offense, making symptoms of withdrawal unlikely.   Further, the trial
court determined that the doctor’s testimony would have been excluded from the
trial had Conley attempted to introduce it.   Consequently, trial counsel was not
deficient for failing to call Dr. Paquette as a witness.
For the reasons stated above, we affirm the judgment of conviction
and the order denying Conley postconviction relief.
By the Court.—Judgment and order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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