State v. John M. Swapsy, Jr.

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.
September 10, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2270-CR Cir. Ct. No. 2016CF1956

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN M. SWAPSY, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: NICHOLAS McNAMARA, Judge. Affirmed.

Before Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. John Swapsy was convicted in the Dane County
Circuit Court, following a jury trial, of one count of arson of a building, contrary
No. 2019AP2270-CR

to WIS. STAT. § 943.02(1)(a) (2013-14).1 In a postconviction motion, Swapsy
argued that he is entitled to a new trial because his trial counsel was
constitutionally ineffective. Specifically, Swapsy argued that his trial counsel was
deficient in counsel’s cross-examination of two of the State’s witnesses and in his
closing argument, and that counsel’s deficient performance was prejudicial.
Following a Machner2 hearing, the circuit court denied Swapsy’s motion. Swapsy
makes the same arguments on appeal, and we affirm.

BACKGROUND

¶2 In September 2016, Swapsy was charged with arson to a building in
connection with a fire that occurred in the early hours of August 27, 2016, at the
house of Kenneth Jones. The case was tried to a jury. Witness testimony,
including the testimony of Jones, Brandon Kalish, who was living at Jones’s house
at the time of the fire, and Mark and Keenan Howard, who lived next door to
Jones, was presented by the State to prove that Swapsy started the fire.

¶3 The testimony of these witnesses established the following facts.
Around midnight on August 26-27, 2016, Swapsy had a verbal altercation with
Jones at Jones’s house. During that altercation, Swapsy yelled that he was going
to burn Jones’s house down. Swapsy then left Jones’s house on a bicycle. In the
early hours of August 27, Jones’s house started on fire. Around the time that the
fire started, Jones saw Swapsy ride a bicycle past Jones’s living room window.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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¶4 During its opening statement, the State asserted that it intended to
present the testimony of Charmaine Smith, who would give evidence that
“[Swapsy] was angry and jealous because [Smith] … was living at the time …
with … Jones” and that “Smith heard [Swapsy] as the fire was being lit.”
However, although Smith was subpoenaed and a bench warrant was issued by the
circuit court, Smith failed to appear at trial.

¶5 A jury found Swapsy guilty of the charge of arson to a building.
Swapsy filed a postconviction motion for a new trial on the basis that he received
constitutionally ineffective assistance of counsel. Swapsy alleged that his trial
counsel was deficient in counsel’s cross-examinations of Jones and Kalish, and in
counsel’s closing argument. The circuit court held a Machner hearing at which
Swapsy’s trial counsel testified. Following the hearing, the court denied Swapsy’s
motion.

¶6 Swapsy appeals. We will mention other material facts in the
following discussion.

DISCUSSION

¶7 Swapsy contends that the circuit court erred in concluding that the
assistance he received from his trial counsel was not constitutionally ineffective.
We begin by discussing legal principles that govern ineffective assistance of
counsel allegations and setting forth our standard of review.

I. Legal Principles Governing Ineffective Assistance of Counsel
and Standard of Review.

¶8 A defendant, such as Swapsy, alleging ineffective assistance of trial
counsel has the burden of proving both that counsel’s performance was deficient
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and that he suffered prejudice as a result of that deficient performance. Strickland
v. Washington, 466 U.S. 668, 687 (1984).

¶9 To prove that counsel’s performance was deficient, the defendant
must point to specific acts or omissions by counsel that “[fall] below an objective
standard of reasonableness” considering all the circumstances. See id. at 688, 690.
When evaluating counsel’s performance, this court’s review is “highly deferential”
and we do “not second-guess a reasonable trial strategy, [unless] it was based on
an irrational trial tactic or based upon caprice rather than upon judgment.” State v.
Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d 93 (alteration in the
original) (quoting State v. Domke, 2011 WI 95, ¶¶36, 49, 337 Wis. 2d 268, 805
N.W.2d 364). “Counsel need not be perfect, indeed not even very good, to be
constitutionally adequate.” State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571,
665 N.W.2d 305 (quoted source omitted).

¶10 To show prejudice, the defendant must demonstrate that “there is 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. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.

¶11 We need not address both aspects of the Strickland test if the
defendant does not make a sufficient showing on either one. See id. at 697.

¶12 On appeal, our standard of review is two-fold. This court accepts
the circuit court’s findings of fact unless clearly erroneous; however, we review
the circuit court’s application of constitutional principles to those facts de novo.
State v. Harvey, 139 Wis. 2d 353, 376, 407 N.W.2d 235 (1987). Therefore, the
“legal conclusions of whether the performance was deficient and prejudicial based
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on [the postconviction] factual findings ... are questions of law independently
reviewed by this court.” State v. Delgado, 194 Wis. 2d 737, 750, 535 N.W.2d 450
(Ct. App. 1995).

¶13 We now turn to Swapsy’s ineffective assistance of counsel claims.

II. Trial Counsel Was Not Deficient in Counsel’s Cross-
Examination of Jones.

¶14 Swapsy contends that his trial counsel was ineffective for failing to
more effectively impeach Jones for having given differing, inconsistent statements
about whether Jones saw Swapsy in the vicinity of Jones’s house around the time
the fire was discovered and about where the argument took place between Swapsy
and Jones before the fire. We begin our analysis by setting forth pertinent facts
regarding this issue.

A. Pertinent Facts.

¶15 At trial, Jones testified to the following on direct examination. As a
result of a motor vehicle accident in the 1980s, Jones suffers from “occasional[] …
memory issues.” On August 26, 2016, Smith, a friend of Jones who frequently
spent time at Jones’s house, was at Jones’s house because she had an argument
with Swapsy. At that time, Smith and Swapsy were dating. Around midnight on
August 26-27, Smith had an argument with Swapsy in the basement of Jones’s
house. Jones, who had been upstairs, went down to the basement. While in the
basement, Swapsy told Jones that Jones was “the one I want to talk to” and, in a
“loud” and “angry” manner, Swapsy told Jones: “I’m going to burn down your
[mother fucker] house.” Swapsy then left Jones’s house and “rode away on a
bike.”

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¶16 Sometime in the early hours of August 27, 2016, Jones saw flames
coming from the back of his house. Shortly before Jones became aware of the
fire, Jones observed Swapsy ride past his living room window on a bicycle and
“yelling stuff.”

¶17 For context, we now mention three written reports. The first is a
police report prepared by Officer Doreteo Cano on August 27, 2016, which
recounted the following:

Jones told me he was not certain what had occurred
[at about the time the fire started] but heard [a] male
outside yelling. Jones stated he could not understand what
the individual was saying. Jones said the voice sounded
like an individual named “John” who he knew was in a
former relationship with Charmaine Smith. Jones said he
did not actually see “John.” Jones told me after hearing
“John” outside, he looked outside a back window and saw
the back end of the residence on fire along with a bike that
belonged to Smith. Jones said he alerted everyone in the
residence to evacuate.

Jones told me he had no further information to
share.

¶18 The second report was prepared on September 7, 2016 by Peter
Trilling, a fire investigator with the City of Madison Police Department, on the
cause of the fire. That report recounted the following:

Jones stated just prior to the fire, he was inside the
residence and was “watching TV and dosing off.” Jones
stated that he suddenly heard [Smith] and [one of Jones’s
roommates], who lives in the basement area, yelling; “He’s
back there and we can smell some gas, and the house is on
fire.” Jones stated he heard the suspect yelling out
something as [the suspect] was leaving but could not recall
the specific words yelled. Jones stated that at the same
time, he suddenly was able to see flames from inside the
house climbing up the rear exterior of his residence.

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¶19 The third report was prepared by Detective Matt Nordquist on
September 1, 2016, following an interview with Jones, which recounted the
following:

Jones said that [Swapsy] showed up around midnight and
was very upset. [Jones] indicated that he and Smith had
been in an area downstairs and that [Swapsy] began loudly
banging on the basement door. Jones said that he did not
recall what [Swapsy] was saying but that he recalled that he
was mainly screaming at Charmaine Smith.

Jones said at this point he opened the door and
stepped outside. [Jones] indicated that he “stepped up” to
[Swapsy] and that [Swapsy] looked him up and down.
Jones said that [Swapsy] asked him if he knew Smith and
Jones replied that she was his friend. Jones said that
[Swapsy] then said something to the effect of “We were
supposed to get married” and “I bought her a ring.” Jones
said that [Swapsy] also made a statement that he was going
to come back and “burn down the house.” Jones described
that this altercation was only verbal and that they were in
the back yard [sic] area to the rear of the house.

¶20 On cross-examination, Swapsy’s trial counsel asked Jones if Jones
recalled telling Officer Cano, on the night of the fire, that Jones did not see the
person who started the fire. Jones denied telling Officer Cano that and stated that
“[m]ore than likely,” he told Officer Cano that he “saw [Swapsy] riding his bike
past the window yelling some things.” Trial counsel also asked Jones if he
recalled telling Detective Nordquist a few days after the fire that “Swapsy came to
[Jones’s] door … [and Jones] stepped outside.” Jones did not recall telling
Detective Nordquist that he stepped outside when Swapsy came to his door and
stated that he never “step[ped] outside,” and his interaction with Swapsy was “in
[his] home.” Trial counsel did not cross-examine Jones about the statements Jones
made to Trilling.

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¶21 At the Machner hearing, trial counsel testified that counsel believed
Jones to be “sympathetic” to the jury because of Jones’s brain injury and that
Jones “seemed confused” during direct and cross-examination. Because of that,
counsel made a conscious decision not to “push[] [Jones] very hard” on
inconsistencies between his testimony and his prior statements. Related to that,
counsel also testified that he made a conscious decision not to question Trilling
about Jones’s failure to tell Trilling that he observed Swapsy at the scene of the
fire. Counsel stated that Trilling’s report was “silent” on whether Jones saw
Swapsy around the time the fire started and that, because Trilling was “testifying
about the fire investigation as an expert based on what Jones has said and how he
testified without me knowing specifically what Trilling would have said … I chose
not to go into that with him.”

¶22 The circuit court determined that trial counsel was not deficient for
failing to further impeach Jones for having given differing, inconsistent statements
on whether he saw Swapsy around the time the fire was started. The court found
that the jury was sufficiently informed on direct, cross, and re-direct examination
of the inconsistencies between Jones’s testimony and his prior statements. The
court further found that: “It was simply not necessary [for counsel] to directly
push Jones further on this point to effectively establish the potential for doubt in
[Jones’s] identification of [Swapsy].” The court did not expressly address whether
counsel was ineffective for failing to impeach Jones with Trilling’s report.

¶23 The circuit court also determined that trial counsel was not
ineffective for failing to further impeach Jones for having given differing,
inconsistent statements on whether the verbal altercation with Swapsy took place
inside or outside Jones’s house. The court stated that it was “unclear how
convincing the jury that Jones was more accurate in his first statement would
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No. 2019AP2270-CR

benefit [] Swapsy…. [L]apses and faults in Jones’[s] memory was very well
established and directly presented to the jury.”

B. Analysis.

¶24 Swapsy asserts that effective counsel would have impeached Jones
at trial with Officer Cano’s police report and Trilling’s fire investigation report by
showing that, although Jones testified that he saw Swapsy riding away from his
house on a bicycle around the time the fire started, Jones told Officer Cano that
Jones was unable to identify the person Jones observed fleeing from the scene of
the fire, and Trilling’s report does not indicate that Jones saw anybody fleeing the
scene. However, we agree with the State and the circuit court that Swapsy has
failed to make a sufficient showing that trial counsel’s failure to do so rises to the
level of deficient performance.

¶25 To summarize, Jones testified that he suffered problems with his
memory as a result of injuries Jones suffered in an automobile accident. Trial
counsel testified that counsel believed Jones to be “sympathetic” because of
Jones’s brain injury, and counsel felt that Jones “seemed confused” during direct
and cross-examination. Because of that, counsel made a “conscious decision” to
“avoid pushing” Jones on cross-examination. Counsel also testified that he made
a conscious decision not to highlight Jones’s failure to tell Trilling that he saw
Swapsy around the time of the fire because Trilling was testifying about his
investigation into the cause of the fire as an expert “based on what Jones had said
and how he testified,” and counsel did not know specifically what Trilling would
testify to.

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¶26 Generally, trial strategy decisions reasonably based on law and fact
do not constitute ineffective assistance of counsel. See State v. Hubanks, 173
Wis. 2d 1, 28, 496 N.W.2d 96 (Ct. App. 1992).

¶27 The circuit court has the opportunity to both see and hear counsel’s
presentation at trial and to evaluate it in conjunction with counsel’s testimony at
the Machner hearing. If the circuit court finds that defense counsel’s strategy was
reasonable, we will not second-guess that strategy even if, in hindsight, it appears
a different strategy would have been more effective. See State v. Sholar, 2018 WI
53, ¶54, 381 Wis. 2d 560, 912 N.W.2d 89 (“If trial counsel testifies at the
Machner hearing that the choice under attack was based on a trial strategy, which
the circuit court finds reasonable, it is ‘virtually unassailable’ and the ineffective
assistance claim fails.” (quoted source omitted)).

¶28 The circuit court found that it was reasonable under the
circumstances for trial counsel not to press Jones further at trial on inconsistencies
between his testimony and his prior statements purportedly made by Jones.
Swapsy asserts in his reply brief that “it is folly to suggest a witness with a
disability cannot be effectively cross-examined or impeached.” We agree with
Swapsy’s general observation. However, simply because a witness with a
disability can be effectively cross-examined and impeached does not mean that a
reasonable defense strategy requires that defense counsel proceed beyond what
counsel believes is effective in a particular situation. Here, the jury was aware that
Jones suffered problems with his memory, and counsel believed that Jones came
off to the jury as confused. As noted by the circuit court, a different attorney
might have taken a different approach when cross-examining Jones by pressing
Jones further about the inconsistencies between his testimony and his prior
statements. We agree with the circuit court that counsel’s failure to do so in this
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No. 2019AP2270-CR

case does not fall below an objective standard of reasonableness under the totality
of the circumstances. See State v. Maloney, 2004 WI App 141, ¶23, 275 Wis. 2d
557, 685 N.W.2d 620 (“Trial counsel is not ineffective simply because an
otherwise reasonable trial strategy was unsuccessful.”). We now turn to Trilling’s
report.

¶29 The circuit court did not make a specific finding that trial counsel’s
strategic decision not to impeach Jones with Trilling’s report was reasonable.
However, given the jury’s awareness of Jones’s memory problems, counsel’s
belief that Jones appeared confused during his testimony, the fact that Trilling was
testifying as an expert as to the cause of the fire, and counsel’s lack of knowledge
about what Trilling would testify to, we agree with the State that counsel’s
decision was reasonably based on law and fact and, therefore, does not constitute
deficient performance. See Hubanks, 173 Wis. 2d at 28.

¶30 Because we conclude that trial counsel did not perform deficiently
by failing to press Jones further on inconsistencies between his prior statements to
Officer Cano and Trilling and his testimony, we do not to reach the question of
prejudice on those points. See Strickland, 486 U.S. at 697.

¶31 Swapsy also asserts that effective counsel would have impeached
Jones at trial with the report prepared by Detective Nordquist by showing that,
although Jones testified that the argument with Swapsy took place in Jones’s
basement, Jones told Detective Nordquist that the argument took place in Jones’s
backyard. We need not address whether trial counsel’s failure to impeach Jones
with Detective Nordquist’s report constitutes deficient performance because we
conclude that counsel’s failure to do so was not prejudicial. See id.

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¶32 As the circuit court determined, Swapsy has failed to show “how
convincing the jury that Jones was more accurate in his [statement to Detective
Nordquist] … would ever benefit [] Swapsy.” Swapsy asserts that trial counsel’s
failure to impeach Jones with Detective Nordquist’s report was prejudicial because
“Jones’s credibility would have been further suspect” had counsel done so.
However, the jury was aware that Jones suffered from problems with his memory
and was aware that Jones’s claim that the argument took place inside his house
was inconsistent with the testimony of other witnesses. Jones does not explain
how additional evidence calling into question the reliability of Jones’s recollection
of where the argument took place would undermine confidence in the outcome of
the proceeding in light of all the other evidence. See id. at 694. Accordingly, we
agree with the circuit court that Swapsy was not prejudiced by counsel’s failure to
impeach Jones with Detective Nordquist’s report.

III. Trial Counsel Was Not Constitutionally Ineffective in Counsel’s Cross-
Examination of Kalish.

¶33 Swapsy contends that his trial counsel was ineffective because
counsel failed to attempt to impeach Kalish with evidence of Kalish’s fourteen
criminal convictions.3 Based upon a stipulation between the State and Swapsy, the
circuit ruled that Kalish could be impeached with Kalish’s prior convictions.

3
To the extent that Swapsy also means to argue that his trial counsel was constitutionally
ineffective for eliciting testimony from Kalish on cross-examination that, after speaking with
Smith, Kalish informed a law enforcement officer that he believed that the individual involved in
the verbal altercation with Smith and Jones on August 26-27, 2016, “was someone named John,”
we reject that argument. At the Machner hearing, trial counsel testified that he elicited this
testimony in order to show that Smith “suggest[ed]” to Kalish that Swapsy had been the man with
whom Smith had been arguing. Swapsy does not contend that counsel’s strategy was based on an
(continued)

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¶34 We begin by setting forth further pertinent facts.

A. Pertinent Facts.

¶35 At trial, Kalish testified to the following facts. In August 2016,
Kalish was living at Jones’s house. Around midnight on August 26-27, 2016,
Kalish was in his upstairs bedroom when he heard Smith arguing with an
unknown man in the backyard of Jones’s house. Kalish heard the unknown man
state that he “was going to come back and light the house on fire.” Kalish later
saw a black, bald man riding away from the house on a bicycle. That description
generally matches Swapsy’s appearance.

¶36 At the Machner hearing, Swapsy’s trial counsel acknowledged that
he was aware at trial that Kalish had multiple criminal convictions. When trial
counsel was asked why he did not question Kalish about his convictions, trial
counsel stated that his failure to do so was an “oversight.” The circuit court found
that trial counsel’s failure to impeach Kalish with his prior convictions was
deficient performance. However, the court determined that Swapsy was not
prejudiced by counsel’s error. The court stated that the substantive evidence from
Kalish’s testimony was corroborated by Jones and the Howards. The court did not
believe that impeachment of Kalish’s credibility by prior convictions would have
caused the jury to give no weight to not only Kalish’s testimony, but also no
weight to the testimony of Jones and the Howards.

irrational tactic or on caprice, and we therefore will not second-guess that strategy. State v.
Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d 93.

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B. Analysis.

¶37 The State does not dispute that it was deficient performance for trial
counsel not to impeach Kalish with Kalish’s fourteen prior convictions. See
generally Fischer v. Wisconsin Patients Comp. Fund, 2002 WI App 192, ¶1 n.1,
256 Wis. 2d 848, 650 N.W.2d 75 (stating that an argument asserted by the
appellant and not disputed by the respondent may be taken as admitted). We
therefore do not disturb the circuit court’s determination that trial counsel’s failure
to impeach Kalish constitutes deficient performance.

¶38 We now turn to the next step under Strickland and determine
whether Swapsy has sufficiently shown that he was prejudiced by trial counsel’s
error.

¶39 Swapsy’s argument as to prejudice is that counsel missed “a golden
opportunity to attack [Kalish’s] credibility and to call into question his … general
description of the arsonist.” Swapsy does not explain why the result of the
proceeding would have been different but for trial counsel’s failure to impeach
Kalish with evidence of the convictions. We could reject Swapsy’s argument on
the basis that it is not sufficiently developed. See Associates Fin. Servs. Co. of
Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3, 258 Wis. 2d 915, 656 N.W.2d 56
(stating that generally this court does not consider conclusory and undeveloped
assertions). However, for completeness, we address the merits of Swapsy’s
argument.

¶40 We agree with the State and the circuit court that Swapsy’s failure to
ask Kalish about his prior convictions was not prejudicial.

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No. 2019AP2270-CR

¶41 Kalish’s testimony was far from the lynchpin of the State’s case
against Swapsy. To repeat, Kalish testified that he observed a black, bald man,
which matches Swapsy’s general appearance, riding away from Jones’s house
after the verbal altercation. However, Kalish did not identify Swapsy at trial as the
person he saw and, in fact, testified that he was not able to recognize the man.
Moreover, the key evidence to which Kalish testified was corroborated by the
testimony of other witnesses. Jones testified that he observed Swapsy riding away
from the house at the time the fire was noticed, corroborating Kalish’s testimony
that he observed a black, bald man riding away from the house around the time the
fire started. Kalish also testified that he heard the man threaten to come back to
Jones’s house and light the house on fire. This was corroborated by Jones, as well
as by neighbors Mark and Kennan Howard, who, as the circuit court found,
“independently testified that they heard a male voice threatening to come back and
light the house on fire.” In short, Kalish did not provide any unique evidence.

¶42 Like the circuit court, we are not persuaded that impeachment of
Kalish’s credibility by his prior criminal convictions would have caused the jury to
give no weight to Kalish, and also no weight to the testimony of Jones and the
Howards. In his reply brief, Swapsy concedes that trial counsel’s failure to
impeach Kalish is, by itself, not prejudicial. However, he argues that, when
“coupled with [counsel’s] other errors,” the cumulative effect of the errors is
prejudicial. See Thiel, 264 Wis. 2d 571, ¶¶59-60 (gauging prejudice based on the
cumulative effect of counsel’s errors). We have concluded above that trial counsel
was not deficient in counsel’s cross-examination of Jones and, as we explain
below, counsel was not deficient in his closing argument. Accordingly, we
conclude that there is not a reasonable probability that, but for counsel’s failure to

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impeach Kalish with evidence of the prior convictions, the result of the proceeding
would have been different. See Strickland, 466 U.S. at 694.

IV. Trial Counsel Was Not Deficient in His Closing Argument.

¶43 Swapsy asserts that his trial counsel performed deficiently in his
closing argument, specifically by failing to “highlight” the failure of Charmaine
Smith to testify at trial.

¶44 We repeat pertinent facts here for context. During opening
statement, the State asserted that the jury would hear evidence that “[Swapsy] was
angry and jealous because [Smith] … was living at the time … with … Jones” and
that “Smith heard [Swapsy] as the fire was being lit.” Smith was subpoenaed and
a bench warrant was issued by the court; however, Smith failed to appear at trial.

¶45 Swapsy does not explain in his brief-in-chief how or why trial
counsel’s purported failure to “highlight” the State’s failure to present evidence
from Smith amounts to deficient performance. See Associates Fin. Servs. Co. of
Wis., Inc., 258 Wis. 2d 915, ¶4 n.3 (stating that this court does not consider
conclusory assertions and undeveloped arguments). Moreover, as pointed out by
the circuit court, trial counsel in fact argued that Smith’s absence should
contribute to a finding by the jury of not guilty. Trial counsel argued at closing:

And [Smith is], I think, a missing factor here….
[C]ertainly other people testified that she was present at the
house, that she’s a regular there. Also the testimony was
that … she’s the connection between [] Swapsy and that
house because she’s there; otherwise, there’s no beef,
there’s no problem, and, in fact, [Swapsy] doesn’t know
anyone else there.

So it would have been interesting to get her
perspective. Certainly given the number of perspectives
we’ve had, I think that there is something missing there….

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… Well, it would have been interesting to hear
what she had to say and when she had to say it.

¶46 In his reply brief, Swapsy asserts for the first time on appeal that
counsel’s response to Smith’s absence was “tepid” and “ineffectual.” Swapsy
argues that his trial counsel should have instead argued that the State’s opening
statements were not evidence and that the State’s assertion that Smith claimed that
Swapsy had set the fire was not proven by the State. We need not address issues
or arguments raised for the first time in a reply brief. See Richman v. Security
Savings & Loan Ass’n, 57 Wis. 2d 358, 361, 204 N.W.2d 511 (1973). At any
rate, trial counsel’s argument regarding the failure of Smith to testify was
sufficient to make the argument Swapsy asserts is lacking.

¶47 Accordingly, we reject Swapsy’s argument that trial counsel was
deficient for failing to raise a point that counsel in fact raised.

CONCLUSION

¶48 For the foregoing reasons, the judgment and order of the circuit
court are affirmed.

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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