COURT OF APPEALS

DECISION

DATED AND FILED

October 14, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2020AP55 Cir. Ct. No. 2012CF963

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

VICTOR H. BENITEZ,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County: 

WILLIAM E. HANRAHAN, Judge. Affirmed. 

Before Blanchard, 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). 
No. 2020AP55

2

¶1 PER CURIAM. Victor H. Benitez appeals an order denying his WIS.

STAT. § 974.06 (2019-20)1 postconviction motion for a new trial and postconviction 

discovery, entered following an evidentiary hearing. Benitez argues that 

postconviction counsel was ineffective for failing to raise claims alleging ineffective 

assistance by trial counsel, and that he is entitled to additional testing of airbag fiber 

evidence. We conclude that trial counsel did not perform deficiently and therefore, 

postconviction counsel was not ineffective. We further conclude that Benitez is not 

entitled to the postconviction discovery he seeks. We affirm. 

BACKGROUND

¶2 Following a jury trial, Benitez, the sole survivor of a single-car crash, 

was convicted of numerous charges stemming from the deaths of the car’s other 

four occupants, including homicide by driving while intoxicated and homicide by 

driving with a restricted controlled substance in his blood.2 Benitez’s defense at 

trial was that the State failed to prove that Benitez was driving the car at the time of 

the crash. On direct appeal, Benitez argued that trial counsel was ineffective for 

failing to object to a jury view of the car, to an expert report, or to testimony of 

Trooper Ryan Zukowski (the accident reconstructionist called as a witness by the 

State at trial), and that his sentence was unduly harsh. We affirmed the judgment. 

State v. Benitez, No. 2015AP1602-CR, unpublished slip op. (WI App July 14, 

2016). 

¶3 Thereafter, Benitez, by new counsel, filed the WIS. STAT. § 974.06 

postconviction motion and motion for postconviction discovery that resulted in the 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

2

 Benitez was acquitted of four counts of hit and run causing death. 
No. 2020AP55

3

circuit court decisions that Benitz now appeals. Benitez claimed that trial counsel 

provided ineffective assistance in his (1) “handling” of the airbag fiber evidence at 

trial; (2) “handling” of certain “aspects” of the toxicology evidence; (3) failure to 

seek suppression of Benitez’s statements, “or at least place them in proper context”; 

and (4) failure to challenge the legality of Benitez’s arrest. The motion alleged that 

Benitez’s sufficient reason for failing to raise these claims on direct review was the 

ineffectiveness of postconviction counsel. Additionally, Benitez asked the 

postconviction court to order “post-conviction testing and analysis of the fibers 

found on the driver’s airbag against the clothing of all the other vehicle occupants.” 

¶4 The circuit court held an evidentiary Machner3 hearing. Trial and 

postconviction counsel both testified, along with two expert witnesses called by

Benitez. The circuit court denied the motion, finding that Benitez had not shown 

that trial or postconviction counsel’s strategic decisions were unreasonable or 

prejudicial. Benitez appeals.

DISCUSSION

I. Legal Standards

¶5 Absent a sufficient reason, a defendant is procedurally barred from 

using a WIS. STAT. § 974.06 postconviction motion to bring claims that could have 

been raised earlier. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 184-85, 517 

N.W.2d 157 (1994); § 974.06(4). The ineffective assistance of postconviction 

counsel may constitute a reason sufficient to overcome the procedural bar. See State 

ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 682-83, 556 N.W.2d 136 (Ct. 

 

3

 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2020AP55

4

App. 1996). In determining whether postconviction counsel was ineffective, we 

first examine trial counsel’s performance. See State v. Ziebart, 2003 WI App 258, 

¶15, 268 Wis. 2d 468, 673 N.W.2d 369.4 

¶6 To prevail on an ineffective assistance of counsel claim, a defendant 

must establish that counsel performed deficiently and that this deficiency prejudiced 

the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish 

deficient performance, a defendant must show specific acts or omissions of counsel 

that were “outside the wide range of professionally competent assistance.” Id. at 

690. Judicial review of an attorney’s performance is “highly deferential” and the 

reasonableness of an attorney’s acts must be viewed from counsel’s contemporary 

perspective to eliminate the distortion of hindsight. State v. Maloney, 2005 WI 74, 

¶25, 281 Wis. 2d 595, 698 N.W.2d 583. To prove prejudice, the defendant must 

demonstrate “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. We need not address both prongs of the test if the defendant fails to make a 

sufficient showing on either one. Id. at 697.

II. Airbag Fiber Evidence 

¶7 At trial, Benitez called Ruth Henk, a State Crime Lab analyst in the 

trace evidence unit. Henk testified that she tested the front-seat driver and passenger 

airbags, fibers found on the airbags, and three items of Benitez’s clothing. She 

 

4

 Generally, a defendant who alleges that postconviction counsel was ineffective for 

failing to bring certain viable claims must demonstrate that the new claims he wishes to bring are 

clearly stronger than those actually brought by postconviction counsel. State v. Romero-Georgana, 

2014 WI 83, ¶4, 360 Wis. 2d 522, 849 N.W.2d 668. Because we determine that trial counsel did 

not perform deficiently, it follows that postconviction counsel was not ineffective for failing to 

bring the new challenges raised in Benitez’s WIS. STAT. § 974.06 collateral attack. Put differently, 

we have concluded that Benitez’s new claims are not viable.
No. 2020AP55

5

testified that fibers found on the driver’s airbag were inconsistent with Benitez’s 

clothing, while fibers found on the passenger’s airbag were consistent with his black 

t-shirt. On cross-examination, she testified that in a rollover accident with 

unrestrained occupants, trace material might get tossed around, and agreed that as 

compared to a head-on collision, trace evidence in “[a] rollover would be less 

reliable [in helping to determine] driver placement” just before a crash. 

¶8 In closing argument, trial counsel relied on this evidence that 

Benitez’s DNA was not found on the airbags and that fibers consistent with his shirt 

were found on the passenger’s airbag. He argued that the airbags were of “unique 

evidentiary value” because they had been “tucked away” until the accident occurred. 

In rebuttal, the State argued that it “makes perfect sense” that possible fibers from 

Benitez’s shirt were found on the passenger’s airbag given evidence that the driver 

was thrust to the side and because Benitez had “crawled out through the passenger 

side” to exit the car after the crash. 

¶9 Benitez contends that trial counsel performed deficiently by failing to 

(1) seek further comparison testing of fibers from the driver’s airbag to see if they

matched any of the victims’ clothing, (2) ask additional specific questions of Henk, 

and (3) somehow prevent the State from arguing that the fiber evidence was 

consistent with its theory of the crash. We are not persuaded. 

¶10 At the Machner hearing, trial counsel testified that “the general theory 

of the case as I looked at it was the evidence that existed did not place [Benitez] in 

the driver’s seat.” Counsel testified that he considered this “a pretty solid defense,” 

because accident reconstructionist Zukowski “could not determine who was driving 

the vehicle.” Counsel confirmed that he called Henk to testify because there were 

“fibers consistent with [Benitez] on the passenger airbag.” He did not object to 
No. 2020AP55

6

Henk’s testimony concerning how the driver’s clothing fibers might have ended up 

on the passenger airbag because he did not think this testimony was “very credible.” 

Trial counsel testified that he considered hiring an expert to talk about airbag 

deployment but chose not to because “the airbag evidence wasn’t that critical.” 

¶11 On this record, it was objectively reasonable for trial counsel not to 

seek further testing of trace fibers found on the driver’s airbag. Benitez’s theory 

was that the State could not prove beyond a reasonable doubt that he was the driver. 

Trial counsel argued in closing that given all the variables, the driver’s identity was 

unknowable and could never be determined. Assuming that the other occupants’ 

clothing was even preserved, Benitez fails to explain why trial counsel should have 

determined that there was something to be gained from further testing, given that

the test results were already consistent with Benitez’s defense. See Strickland, 466 

U.S. at 691 (a reasonable decision that makes particular investigations unreasonable 

is not deficient performance). 

¶12 Similarly, we reject Benitez’s contention that trial counsel 

unreasonably mishandled Henk’s testimony and the airbag fiber evidence 

introduced at trial. Here, Benitez faults trial counsel for not preventing Henk from 

testifying that trace material could get tossed around in a rollover crash, and for not 

objecting to the State’s closing argument advancing a different interpretation of the 

fiber evidence. We agree with the State that these claims lack substance and rely 

on hyperbolic hindsight descriptions of the trial testimony that in no way establish 

trial counsel’s ineffectiveness. “‘[I]t is the right of a defendant and trial counsel to 

select the particular defense, from among the alternatives available, upon which they 

elect to rely[,]’” and “‘[i]t is the considered judgment of trial counsel that makes the 

selection among available defenses, not the retroactive conclusion of postconviction 

counsel.’” Weatherall v. State, 73 Wis. 2d 22, 26, 242 N.W.2d 220 (1976) (quoted 
No. 2020AP55

7

source omitted). That postconviction counsel or other counsel might have tried the 

case differently does not establish that trial counsel performed deficiently. 

¶13 Contrary to Benitez’s suggestion, his expert mechanical engineer, 

Zachary Bingen, said nothing at the Machner hearing that bolsters the significance 

of the airbag fibers. Bingen conceded that his findings were “consistent with 

[Zukowski’s] findings” about how the crash occurred and occupant movement

during the crash. He conceded that “once the airbags are deployed, there are any 

number of ways in which fibers could be deposited on an airbag.” Further, as noted 

by the postconviction court, Bingen conceded that he had no training in trace 

evidence analysis and was concluding how fibers could end up on the airbags based 

on common sense. 

III. Failure to Seek Suppression of Benitez’s Statements or to Place them 

in Proper Context 

¶14 After the accident, Benitez was transported to the hospital, where he 

remained for six days under police guard. Benitez repeatedly asked what had 

happened and frequently requested a “play-by-play” of the accident. While 

hospitalized, Benitez made statements relating to the accident but never admitted to 

driving the car. In closing, the State argued that Benitez was feigning his lack of 

memory and noted that he made inconsistent remarks about the accident. Trial 

counsel argued that Benitez was confused due to his injuries, including a 

concussion, along with the trauma of the accident. This explained his lack of 

memory, why he left the accident scene, and any inconsistent statements. 

¶15 Benitez argues that trial counsel should have moved to suppress all of 

his statements made to police, family members, and medical personnel either 
No. 2020AP55

8

because he was not read his Miranda5rights, the statements were involuntary, or 

the statements were contained in his hospital records. He divides the statements 

into three categories: those made before 8:12 p.m., when Benitez was told he was 

under arrest; those made after 8:12 p.m. pursuant to direct questioning by police; 

and those made after 8:12 p.m. “by de facto police proxies and/or resulting from the 

functional equivalent of questioning.” The State agrees that Benitez was in custody 

for Miranda purposes at 8:12 p.m., but argues several reasons why his claims lack 

merit. 

¶16 Law enforcement is required “to inform suspects of their rights to 

remain silent and to have an attorney present during custodial interrogations.” State 

v. Bartelt, 2018 WI 16, ¶27, 379 Wis. 2d 588, 906 N.W.2d 684 (citing Miranda, 

384 U.S. at 458). A person is in custody for Miranda purposes when there is “‘a 

formal arrest or restraint on freedom of movement of a degree associated with a 

formal arrest.’” Bartelt, 379 Wis. 2d 588, ¶31 (quoted source omitted). Whether 

questioning of a person in custody constitutes interrogation depends on “the nature 

of the information the question is trying to reach.” State v. Harris, 2017 WI 31, 

¶17, 374 Wis. 2d 271, 892 N.W.2d 663. “If that information has no potential to 

incriminate the suspect, the question requires no Miranda warnings.” Harris, 374 

Wis. 2d 271, ¶17. However, if the question is “‘designed to elicit incriminatory 

admissions,’” the answer to that question must be suppressed. Id., ¶¶15–16 (quoted 

source omitted). 

¶17 We agree with the State that Benitez has not met his burden to show 

that trial counsel performed deficiently by failing to seek suppression of Benitez’s 

statements. First, Benitez fails to develop his argument with the requisite 

 

5

 See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
No. 2020AP55

9

specificity, instead referring only generally to how the State summarized his 

statements in its closing argument. As the State’s brief points out, Benitez spent 

days in the hospital and made different types of statements to different people at 

different times under a variety of circumstances. Benitez does not identify with 

particularity which of these statements trial counsel should have tried to suppress. 

See State v. Prescott, 2012 WI App 136, ¶11, 345 Wis. 2d 313, 825 N.W.2d 515

(allegation “‘that counsel was ineffective by failing to take certain steps must show 

with specificity what the actions, if taken, would have revealed and how they would 

have altered the outcome of the proceeding’” (quoted source omitted)). 

¶18 Second, to the extent Benitez identifies specific statements made to 

law enforcement that should have been suppressed, he fails to show why they would 

have been suppressed based on a motion by trial counsel. A reasonable person in 

Benitez’s position would not have considered himself in custody before 8:12 p.m., 

when he was placed under arrest. See Bartelt, 379 Wis. 2d 588, ¶31 (reciting the 

objective test for determining whether a person is in custody for Miranda purposes). 

Benitez does not argue exactly when he was in custody, but asserts it was as early 

as 8:09 p.m., when Officer Hauda helped accompany Benitez from his CT Scan 

back to his hospital room, because he was “captive in a very vulnerable position,” 

and Hauda had already decided to arrest him, which “inform[ed] her demeanor.” 

We are not persuaded. Benitez was in the hospital for treatment due to his injuries, 

and he fails to explain what “inform[ed] her demeanor” means, or why it matters. 

“‘[T]he initial determination of custody’” does not depend on “‘the subjective views 

harbored by either the interrogating officers or the person being questioned.’”

Bartelt, 379 Wis. 2d 588, ¶33 (quoted source omitted).

¶19 Benitez admits that the police did not question him, but rather he 

characterizes them as “repeatedly indulging [Benitez’s] requests to know what had 
No. 2020AP55

10

happened.” Statements Benitez volunteered to the officers and their responses to 

questions that he asked them, unprompted, do not implicate Miranda. See

LaTender v. State, 77 Wis. 2d 383, 389-90, 253 N.W.2d 221 (1977). Miranda is 

implicated only by custodial interrogation, meaning “express questioning or its 

functional equivalent.” State v. Dobbs, 2020 WI 64, ¶66, 392 Wis. 2d 505, 945 

N.W.2d 609. Officers truthfully answering Benitez’s unprompted questions about 

what they knew about the crash and the status of his passengers is not designed to 

elicit an incriminating response. Nor do Officer Gehrke’s 3:00 a.m. questions 

concerning Benitez’s mental status constitute interrogation for Miranda purposes. 

See Dobbs, 392 Wis. 2d 505, ¶66 (“‘Express questioning’ does not encompass every 

inquiry that is directed to a subject, it covers only those ‘designed to elicit 

incriminatory admissions.’”) (quoted source omitted). 

¶20 Third, we agree with the State that Miranda does not require 

suppression of statements Benitez made to family or hospital staff while “in police 

presence.” Benitez offers no authority for this novel proposition, nor does he 

factually support his contention that his family or hospital staff were acting as 

“de facto police proxies.” Benitez tacitly recognizes as much by requesting that we

extend the law and hold that the police staying in Benitez’s hospital room where 

they could overhear conversations was the “functional equivalent of questioning.”

However, this tacit admission defeats his ineffectiveness claim because neither trial 

nor postconviction counsel can be found deficient for failing to make a novel 

argument. See State v. Lemberger, 2017 WI 39, ¶18, 374 Wis. 2d 617, 893 N.W.2d 

232.

¶21 Benitez’s claim that his statements to hospital staff should be 

suppressed because the police presence violated his right to “confidentiality of his 

medical records,” again unaccompanied by any citation, is similarly baseless. The 
No. 2020AP55

11

notion that police presence in the treatment room violates any statutory right or 

privilege under WIS. STAT. §§ 146.82 or 905.04, or that the remedy for such a 

violation would be suppression of evidence, has been flatly rejected by this court. 

State v. Thompson, 222 Wis. 2d 179, 187-91, 585 N.W.2d 905 (Ct. App. 1998). 

Nor did trial counsel have any valid argument to challenge admission of Benitez’s 

medical records: they were obtained under a valid judge-signed subpoena, and the 

cover letter shows that there was a certified “request and/or authorization” for them 

even if it is not in the record now. See Hagenkord v. State, 100 Wis. 2d 452, 459-

61, 302 N.W.2d 421 (1981). Failure to make meritless arguments is not deficient 

performance. See State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 

N.W.2d 110. 

¶22 Fourth, Benitez’s claim that his statements were involuntary lacks 

specificity and is based on a misstatement of the law. The mere existence of severe 

physical pain or injury is insufficient to render a statement involuntary. State v. 

Clappes, 136 Wis. 2d 222, 240, 401 N.W.2d 759 (1987). Rather, there must be 

“‘some affirmative evidence of improper police practices deliberately used to 

procure a confession.’” State v. Moore, 2015 WI 54, ¶56, 363 Wis. 2d 376, 864 

N.W.2d 827 (quoted source omitted). Benitez has failed to point to anything even 

suggesting any improper police practices deliberately used to procure a confession, 

and therefore he has failed to show that a suppression motion on this ground could 

have succeeded. 

¶23 Fifth, we agree with the State that Benitez fails to come to grips with

an obvious strategic reason for trial counsel not moving to suppress these statements 

even if they could be characterized as resulting from custodial interrogation: it was 

objectively reasonable for trial counsel to see an advantage in allowing the jury to 

hear these statements because he repeatedly contradicted himself and asked the 
No. 2020AP55

12

police the same questions over and over again. This evidence supporting a finding 

that Benitez was genuinely confused in the aftermath of the crash was used by trial 

counsel in closing to argue for acquittal on the failure-to-render-aid and obstruction 

charges because it tended to disprove that Benitez knew he had been in an accident 

and intentionally left the scene. 

¶24 While it is true that trial counsel testified he could not remember why 

he did not seek suppression, “courts may not ... insist counsel confirm every aspect 

of the strategic basis for his or her actions,” Harrington v. Richter, 562 U.S. 86,

109 (2011), and the strong presumption of effective assistance means that if counsel 

cannot remember the precise reason for taking an action, this court must consider 

whether an objectively reasonable strategy could support the decision. See id. 

Further, Benitez’s suppression claim is based on hindsight evaluation of the efficacy 

of the State’s closing argument, which trial counsel could not know before trial. 

¶25 Benitez’s final argument regarding his statements is that trial counsel 

was deficient for failing to place them in the “proper context.” We reject this 

assertion as impermissible “‘Monday-morning quarterbacking’” that takes issue 

with trial counsel’s failure to conduct the trial in the manner that postconviction 

counsel now suggests would have been superior. See Weatherall, 73 Wis. 2d at 26 

(quoted source omitted). To repeat, that is manifestly insufficient to show deficient 

performance. See id.; see also Strickland, 466 U.S. at 690.

IV. Toxicology Evidence 

¶26 Benitez argues that trial counsel “deficiently handled several critical 

toxicology issues” that would have supported the theory that he was not intoxicated 

when he operated the car. These issues include expert retrograde extrapolation 

testimony, testimony about Benitez’s hospital blood test result, the results of a re-
No. 2020AP55

13

test for THC, and the results of testing showing an absence of the cocaethylene 

metabolite. 

¶27 We reject these claims primarily because, as the postconviction court 

recognized, they would require a determination that trial counsel was ineffective for 

focusing on the defense that Benitez was not driving at the time of the crash, and 

not presenting to the jury the inconsistent argument that even if Benitez was driving, 

he was not intoxicated. The postconviction court determined that trial counsel 

“made a strategic decision to more narrowly focus the defense at trial” on the lack 

of evidence proving that Benitez was the driver. The court found that this strategy 

was reasonable and therefore, all of Benitez’s claims about how trial counsel should 

have “handled” the toxicology evidence were meritless. It is well settled that “[t]rial 

counsel is not required to dilute the persuasiveness of his chosen defense by 

accompanying it with a defense that is inconsistent as well as untenable.” Kain v. 

State, 48 Wis. 2d 212, 221, 179 N.W.2d 777 (1970). Trial counsel was not required 

to choose the defense now advocated by postconviction counsel, nor was he required 

to be omniscient or infallible. Once again, Benitez’s arguments are impermissibly 

based on hindsight and ignore the objective reasonableness of decisions made from 

trial counsel’s perspective before and during trial. 

¶28 Benitez points to trial counsel’s Machner testimony indicating that he 

did not have a strategic reason for each and every one of his toxicology-related 

decisions. We agree with the State that, as to each claim of toxicology-related error, 

Benitez selects only bits and pieces and argues that trial counsel should have done 

things differently, whether by asking different questions or presenting different 

evidence. For our purposes, what matters is that trial counsel made a reasonable 

decision to focus Benitez’s defense on the element of operation rather than 

intoxication. Given the strong presumption of effectiveness that we must afford 
No. 2020AP55

14

both trial and original postconviction counsel, along with each counsel’s Machner

testimony concerning Benitez’s toxicology-related issues, Benitez has not met his 

burden. 

¶29 We also reject Benitez’s attempt to take this out of the realm of trial 

counsel’s strategy by positing that the toxicology issues he raises are probative on 

the issue of operation, not just intoxication. Here, he claims that “the more impaired 

Benitez appeared to be, the more likely he was the driver.” We agree with the State 

that Benitez cannot transform the toxicology evidence into occupant-placement 

evidence in order to give his ineffectiveness claims some force. 

¶30 Having explained our primary and sufficient reason for rejecting these 

claims, we briefly address why his toxicology claims in particular lack merit. 

¶31 Benitez argues that trial counsel should have challenged the expert 

retrograde extrapolation testimony, which included the opinion that his blood 

alcohol concentration (BAC) was between .071 and .123 at the time of the crash. 

However, as Benitez himself acknowledges, this court has rejected his precise 

argument—that a single data point is not enough to render an opinion. See State v. 

Giese, 2014 WI App 92, ¶¶24-28, 356 Wis. 2d 796, 854 N.W.2d 687. As to his 

assertion that trial counsel should have decided against calling Dr. Kenneth Kudsk 

as a witness because he ended up testifying that Benitez had a .10 BAC at 6:30 p.m., 

this is simply more Monday-morning-quarterbacking by postconviction counsel. 

Concerning the allegedly exculpatory blood test results that were either not admitted 

(THC re-test), or not highlighted to the degree that postconviction counsel suggests 

would have been optimal (cocaethylene), neither was particularly consequential 

given the undisputed and detectable presence of benzoylecgonine, another restricted 

controlled substance or metabolite detected in Benitez’s blood. 
No. 2020AP55

15

V. Failure to Challenge Benitez’s Arrest. 

¶32 Benitez argues that “failing to challenge [his] arrest was deficient and 

prejudicial,” but does not develop his argument. Instead, he simply asserts that 

Officer Hauda lacked probable cause to arrest him at 8:12 p.m., and that the results 

of his blood test should have been suppressed. Benitez’s failure to develop an 

argument on either Strickland prong is fatal to this claim. See State v. Pettit, 171 

Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). 

¶33 At any rate, even if developed the argument would be meritless. 

Probable cause to arrest requires only that the “arresting officer have sufficient 

knowledge at the time of the arrest to ‘lead a reasonable police officer to believe 

that the defendant probably committed or was committing a crime.’” State v. 

Young, 2006 WI 98, ¶22, 294 Wis. 2d 1, 717 N.W.2d 729 (quoted source omitted). 

Officer Hauda was not required to draw all the inferences in Benitez’s favor, as he

now does on appeal. Further, under the collective knowledge doctrine, probable 

cause for Benitez’s arrest also rested on all of Hauda’s colleagues’ observations: 

(1) that Benitez made suspicious statements, was agitated, and had left the scene; 

(2) that the driver’s side of the car was the least damaged and Benitez had survived, 

while everyone else who had been in the car was dead; (3) that Benitez was found 

with his lower body on the driver’s side; (4) that the scene was littered with beer 

cans; and (5) that Benitez smelled of alcohol. See State v. Alexander, 2005 WI App 

231, ¶13, 287 Wis. 2d 645, 706 N.W.2d 191. 

¶34 In sum, there was sufficient evidence to allow a reasonable officer to 

believe Benitez had probably committed a crime even before he was transported 

away from the scene. Counsel’s failure to bring a motion that would have been 

denied is neither deficient nor prejudicial. Ziebart, 268 Wis. 2d 468, ¶14.
No. 2020AP55

16

VI. Denial of Motion for Additional Airbag Fiber Testing. 

¶35 Ordinarily, a criminal defendant is not entitled to discovery beyond 

that which the prosecutor is statutorily and constitutionally required to disclose. 

State v. K. Harris, 2004 WI 64, ¶16, 272 Wis. 2d 80, 680 N.W.2d 737; State v. 

O’Brien, 223 Wis. 2d 303, 319, 588 N.W.2d 8 (1999). WISCONSIN STAT. § 971.23 

provides a defendant with pretrial discovery rights. There is no statute providing 

for postconviction discovery. O’Brien, 223 Wis. 2d at 319.

¶36 O’Brien recognizes a limited right to postconviction discovery, under 

which a defendant may have a due process right to postconviction discovery if the 

evidence sought is relevant to an issue of consequence. Id. Evidence is relevant to 

an issue of consequence “‘only if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the proceeding would have been 

different.’” Id. at 320-21 (quoted source omitted). 

¶37 Benitez has not shown that the testing of fibers on the driver’s airbag 

against the four victims’ clothing “probably would have changed the outcome of the 

trial.” Id. at 321. As discussed above, the airbag fiber testing already showed that 

none of the fibers on the driver’s side airbag were consistent with Benitez’s clothing. 

Additionally, this was a rollover crash that was violent enough to result in four 

fatalities. Expert testimony that certainly comports with common sense would have 

readily supported jury findings that in the course of, and the aftermath of, this

rollover crash, with unrestrained occupants and multiple responders on the scene, 

fiber evidence could end up nearly anywhere. 
No. 2020AP55

17

By the Court—Order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.