FINE, J.
¶ 1 Dekoria Marks appeals the judgment entered on a jury verdict finding her guilty of attempted second-degree intentional homicide, see WIS. STAT. §§ 940.05(1)(a) & 939.32, and from the order denying her motion for postconviction relief.
¶ 2 The jury found Marks guilty of stabbing her on-again and off-again boyfriend, Edward Davis, during an argument they had on an early January 2008 morning. Neither Marks nor Davis testified at the trial, and the parties agreed that what Davis told others could be admitted. The jury heard the case mainly through the testimony of Marks's brother, Gregory Marks, and his ex-girlfriend, Svetylana Walls, as well as the testimony of Randall Chicks, a Milwaukee police detective.
¶ 3 According to Walls and Gregory Marks, they were in a bedroom of a house owned by the Marks's grandfather, when Davis came out of an adjacent room in which Davis and Dekoria Marks were arguing. Davis said that Dekoria Marks had stabbed him. Dekoria Marks also came out of the room and, according to Walls, said "`I'm tired of you putting your damn hands on me. Stop calling me a bitch. I'm tired of all your shit.'" Gregory Marks told the jury that Davis did not say who had stabbed him, but merely that he "got cut." He also said that he did not remember earlier telling Detective Chicks that Davis accused Dekoria Marks of stabbing him.
¶ 4 Both Walls and Gregory Marks testified that Davis left the house that night before he told Walls and Gregory Marks that he was stabbed, and that he left the house either once or many times to, as phrased by Walls, "score drugs." Gregory Marks also told the jury that Davis, whom he described as "a chronic crack user," was in trouble with some drug dealers, having "stole eight ounces of crack from a drug dealer and a Rolex."
¶ 5 Once Gregory Marks saw that Davis was hurt, he called 911, and then both he and Walls hurried out of the house in order to avoid the police. The police arrived quickly, however, and they were ushered back into the house. Detective Chicks later interviewed both Walls and Gregory Marks separately in Chicks's squad car, and, later, after she was arrested, Dekoria Marks.
¶ 6 According to Detective Chicks, Walls told him that Davis and Dekoria Marks were "arguing loud" in the other room and that she heard Davis call Dekoria Marks "a bitch." Later, Davis came out of the room and said, according to Detective Chicks's recitation of what Walls told him, "you stabbed me or she stabbed me." At which point, as related to the jury by Detective Chicks, Walls told him that Dekoria Marks said "something like that's what you get; I told you about putting your hands on me, words similar to that."
¶ 7 Detective Chicks also told the jury that Gregory Marks had described the incident as follows:
¶ 8 As noted, Detective Chicks also interviewed Dekoria Marks once she was in custody. Audio of the interview was recorded and was transferred to a CD and transcribed. Portions of the CD, as redacted by the trial court, were played for the jury concurrent with Detective Chicks's testimony. According to Detective Chicks's testimony, Dekoria Marks said that Davis had slapped her once and she picked up the knife. On cross-examination, Detective Chicks said that Dekoria Marks told him that drug dealers were after Davis because he stole from them and that they might kill him. She also told Detective Chicks that Davis "had a problem cornering her when they used to fight" and that she was defending herself when she stabbed him. The redacted transcript of the interview that the jury heard gives more detail:
Earlier, Walls had testified that Davis was "beating on" Dekoria Marks "lots of times" and that he "gets aggressive with her"
¶ 9 The jury also heard from a police officer who rode in the ambulance with Davis as he was taken to a hospital. According to the officer, Davis told him that on the night of the incident someone had hit him a couple of times to the upper back area and that he then ran home.
¶ 10 As we have seen, Dekoria Marks claims that: (1) her trial lawyer gave her constitutionally deficient representation; (2) the trial court erred when it refused to let the jury hear the unredacted version of what she told Detective Chicks; and (3) she is entitled to a new trial under WIS. STAT. § 752.35. We address each of these contentions in turn.
¶ 11 Dekoria Marks argues that her trial lawyer gave her constitutionally deficient representation in four respects, and contends that the circuit court should have granted her an evidentiary hearing. Before we get to her arguments, we restate the applicable standards.
¶ 12 To establish ineffective assistance of counsel, a defendant must show: (1) deficient representation; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient representation, a defendant must point to specific acts or omissions by the lawyer that are "outside the wide range of professionally competent assistance." Id., 466 U.S. at 690, 104 S.Ct. 2052. To prove prejudice, a defendant must demonstrate that the lawyer's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. Id., 466 U.S. at 687, 104 S.Ct. 2052. Thus, in order to succeed on the prejudice aspect of the Strickland analysis, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694, 104 S.Ct. 2052. As State v. Smith, 207 Wis.2d 258, 276, 558 N.W.2d 379, 386 (1997), tells us, this "is not an outcome-determinative test." Rather, "the touchstone of the prejudice component is `whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.'" Ibid. (citations and quoted source omitted).
¶ 13 Further, courts need not address both aspects of the Strickland test if the defendant does not make a sufficient showing on either one. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Finally, our review of an ineffective-assistance-of-counsel claim presents mixed questions of law and fact. See State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). A circuit court's findings of fact will not be disturbed unless they are clearly erroneous. Ibid. Its legal conclusions whether the lawyer's performance was deficient and, if so, prejudicial, are questions of law that we review de novo. Id., 153 Wis.2d at 128, 449 N.W.2d at 848. A defendant is entitled to an evidentiary hearing on his or her contentions that a lawyer was constitutionally ineffective if the defendant "`alleges sufficient material facts that, if true, would entitle the defendant to relief.'" State v. Love, 2005 WI 116, ¶ 26, 284 Wis.2d 111, 123, 700 N.W.2d 62, 68 (quoted source omitted). Thus, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record
¶ 14 Dekoria Marks's first contention is that her lawyer was constitutionally ineffective because he gave the jury two inconsistent theories: (1) that she stabbed Davis in self-defense, and (2) that Davis was stabbed by unknown angry drug dealers when he was out of the house that morning. In essence, Dekoria Marks argues that her trial lawyer's strategy was fatally flawed because despite the broad berth to which we give a lawyers' strategic decisions under the ineffective-assistance-of-counsel standards, see State v. Westmoreland, 2008 WI App 15, ¶ 20, 307 Wis.2d 429, 439, 744 N.W.2d 919, 924 ("[S]trategic decisions by a lawyer are virtually invulnerable to second-guessing."); State v. Elm, 201 Wis.2d 452, 464-465, 549 N.W.2d 471, 476 (Ct.App.1996) ("A strategic trial decision rationally based on the facts and the law will not support a claim of ineffective assistance of counsel."), it was not within the realm of what Strickland calls the "wide range of professionally competent assistance," Strickland, 466 U.S. at 690, 104 S.Ct. 2052. We disagree.
¶ 15 First, "it is not uncommon for lawyers to argue inconsistent defenses." Westmoreland, 2008 WI App 15, ¶ 21, 307 Wis.2d at 440, 744 N.W.2d at 925. See also State v. McDonald, 144 Wis.2d 531, 533, 424 N.W.2d 411, 412 (1988) (Defendant "entered pleas of not guilty and not guilty by reason of mental disease or defect," contending that he did not kill the victim but was not responsible if he did.); State v. Nelis, 2007 WI 58, ¶ 20, 300 Wis.2d 415, 424, 733 N.W.2d 619, 623 ("Nelis argued at trial that the evidence did not show that he and Diane S. had sexual intercourse on the night at issue. He further argued that, even if they did have sexual intercourse that night, it was consensual."); Brown v. Dixon, 891 F.2d 490, 494-495 (4th Cir.1989) (Inconsistent defenses "that Brown either did not commit the murders or did so while drunk" was not ineffective assistance of counsel.).
¶ 16 Second, given Davis's assertion to the police officer who rode with him to the hospital that he was "hit in the back" by attackers when he was outside the house, coupled with the evidence that he was at risk of being killed because he stole from drug dealers, the argument that he was stabbed by them might have persuaded one or more jurors that the State had not carried its beyond-a-reasonable-doubt burden despite: (1) what Dekoria Marks told Walls, her brother, and Detective Chicks, and (2) what her brother and Walls said that Davis said at the house. Simply put, in order to get any conviction, the State had to persuade all the jurors that Dekoria Marks did what it said she did.
¶ 17 In light of the not uncommon practice of lawyers to argue inconsistent theories, we cannot say that the decision of Dekoria Marks's trial lawyer to argue them here deprived her of the right to constitutionally effective assistance, irrespective of whether we or the trial court view that strategy as the best. As we noted in Westmoreland, 2008 WI App 15, ¶ 21, 307 Wis.2d at 440, 744 N.W.2d at 925: "As Strickland reminds us, there is a `wide range of professionally competent assistance,' id., 466 U.S. at 690, 104 S.Ct. 2052, and the bar is not very high, see Yarborough v. Gentry, 540 U.S. 1, 11, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (lawyer need not be a Clarence Darrow to survive an ineffectiveness contention)."
¶ 19 Dekoria Marks's second claim that her trial lawyer gave her constitutionally deficient representation is that he did not file a motion under McMorris v. State, 58 Wis.2d 144, 205 N.W.2d 559 (1973), which held:
Id., 58 Wis.2d at 152, 205 N.W.2d at 563 (emphasis added). See also WIS. STAT. RULE 904.05(2), referenced by McMorris, 58 Wis.2d at 152, 205 N.W.2d at 563.
As we have seen, however, the jury heard Walls's testimony that Davis had previously been rough with Dekoria Marks in the past. Other than her assertions in the redacted parts of her in-custody interview with Detective Chicks that: (1) Davis had been "arrested" "[i]n the past," (2) there "was violence" between Davis and Dekoria Marks, and (3) she "shoved" Davis "several times" and her "whole back went through the wall with blood last year Christmas," Dekoria Marks does not tell us what more she would have presented at a McMorris hearing and how she would have presented it if her trial lawyer had requested one.
¶ 20 As we have seen, the jury heard a redacted version of Detective Chicks's in-custody interview of Dekoria Marks. Although it is the appellant's responsibility to ensure that the Record before us is complete, see State Bank of Hartland v. Arndt, 129 Wis.2d 411, 423, 385 N.W.2d 219, 225 (Ct.App.1986), neither the CD nor an unredacted transcript is in the Record. Dekoria Marks has submitted, however, a copy of the redacted transcript that was received into evidence and given to the jury.
¶ 21 Dekoria Marks claims that her trial lawyer was ineffective because he did not seek to have the redacted parts admitted under WIS. STAT. RULE 901.07, the so-called "rule of completeness."
¶ 22 Dekoria Marks's trial lawyer explained to the trial court those parts of the redacted transcript that he wanted included. He did not, however, reference WIS. STAT. RULE 901.07. For the purposes of our analysis of the prejudice aspect of Strickland, we assume (without deciding) that not doing so was deficient advocacy. In the following, we have bolded those parts of the redacted transcript that the jury received that Dekoria Marks contends should have been included (we give the context of the redactions in non-bolded type):
Given what the jury had already heard about Dekoria Marks's tumultuous relationship with Davis, Dekoria Marks has not established Strickland prejudice—that is, she has not shown that using WIS. STAT. RULE 901.07's rule-of-completeness was necessary to "correct[] a distorted impression" created by the redacted version. See Anderson, 230 Wis.2d at 144, 600 N.W.2d at 925.
¶ 23 Dekoria Marks claims that her trial lawyer was ineffective for not objecting to what she argues was misconduct by the prosecutor and for not seeking a mistrial. The claims are wholly without merit.
¶ 24 There was no prosecutorial misconduct to which to object.
¶ 25 Further, although Dekoria Marks's main appellate brief does not reveal this, the trial court told the jury that the audio and the transcript had been redacted: "With regard to the defendant's statement, I've ordered that certain portions of some
(c) Dekoria Marks claims on appeal that the following excerpts from the prosecutor's closing argument were also misconduct:
These were fair comments on the evidence that the jury heard, see State v. Amundson, 69 Wis.2d 554, 572, 230 N.W.2d 775, 785 (1975), and any objections would have been frivolous.
¶ 26 In sum, the Record shows conclusively that Dekoria Marks's contentions that her trial lawyer was constitutionally ineffective are without merit. Thus, the circuit court did not erroneously exercise its discretion in not holding an evidentiary hearing. See Love, 2005 WI 116, ¶ 26, 284 Wis.2d at 123, 700 N.W.2d at 68.
¶ 27 As we have seen, Dekoria Marks complains that certain matters should not have been redacted from her custodial interview with Detective Chicks. Assuming but not deciding that the trial court should not have redacted the interview, under the applicable factors any error was harmless beyond a reasonable doubt, given: (1) the evidence of Davis's interactions with Dekoria Marks that the jury did hear, (2) the strength of the evidence against Dekoria Marks, and (3) the fact that the jury accepted her lawyer's contention that she stabbed Davis in what she believed was self-defense, although that belief was unreasonable. See State v. Mayo, 2007 WI 78, ¶ 48, 301 Wis.2d 642, 669, 734 N.W.2d 115, 128 (discussing factors that may be considered in determining whether any error was harmless beyond a reasonable doubt).
¶ 28 Dekoria Marks asks us to exercise our discretion pursuant to WIS. STAT. § 752.35, under which we may order a new trial if it appears from the Record that: (1) "the real controversy has not been fully tried" or; (2) "it is probable that justice has for any reason miscarried." Vollmer v. Luety, 156 Wis.2d 1, 16, 456 N.W.2d 797, 804 (1990).
Judgment and order affirmed.
WISCONSIN STAT. § 940.05(1) provides, as material: "Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if: (a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01(2) did not exist."