### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP55 Cir. Ct. No. 2012CF 963 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

S TATE OF W ISCONSIN , P LAINTIFF - R ESPONDENT ,

V . V ICTOR H. B ENITEZ , D EFENDANT - A PPELLANT .

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 W IS . S TAT . R ULE 809.23(3).No. 2020AP55

2 ¶ 1 PER CURIAM. Victor H. Benitez appeals an order denying his W IS

. S TAT

. § 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 tr ial 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, incl uding 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 a ppeal, 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- CR, unpublished slip op.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 W IS

. S TAT

. § 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 evide nce 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 al leged 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 a n evidentiary Machner 3 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 W IS

. S TAT

. § 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 po stconviction 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

m ust 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 w ere “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 e liminate 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 procee ding 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 via ble 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 W IS

. S TAT

. § 974 .06 collateral attack. Put differently, we have concluded that Benitez’s new claims are not viable.No. 2020AP55

5 testified that f

ibers found on the driver’s a irbag 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 “tuck ed 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 th ey

m atched a ny of the victims’ cloth ing, (2) a sk additional specific questions of Henk,
and (3) so mehow prevent the State from arguing that the fiber evidence was consistent with its theory of the crash. We are not persuaded.
¶ 10 At the Machn er 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 re constructionist 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 toNo. 2020AP55

6 Henk’s testimony concerning h ow 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 no t 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) ( quotedNo. 2020AP55

7 source omitted). That postconviction counsel or other counsel might have tried the case differently does not establish that trial co unsel performed deficiently.
¶ 13 Contrary to Benitez ’s suggest ion , 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 acc ident. 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 eitherNo. 2020AP55

8 because he was not read his Miranda 5 rights, the statements were involuntary, or
the statements were con tained 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 enf

orcement 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
i ncriminate 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 om itted).
¶ 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 requis ite

5 See Miranda v. Arizona , 384 U.S. 436, 4 78

- 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 n ot identif y with particularity which of these statements trial counsel should have tried to su ppress. 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 altere d 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 su ppressed 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 dete rmining 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 accompan y 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] he r demeanor” means, or why it matters. “‘[T]he initial determination of custody’” does not depend on “ ‘ t he 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 indulg ing [Benitez’s] requests to know what hadNo. 2020AP55

10 happened.” Statements Benitez volunteered to the officers and their respons es 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 equivale nt.” 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
incrimi natory 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 poli ce 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 postconv iction 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. TheNo. 2020AP55

11 notion that police presence in the treatment room violates any statutory right or privilege under W IS

. S TAT

. § § 146.82 or 905.04, or that the remedy for such a violation would be suppression of evidence, has been flatly rejected by this c ourt. 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 rec ord 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 reaso nable for trial counsel to see an advantage in allowing the jury to
hear these statements because he repeatedly contradicted himself and asked theNo. 2020AP55

12 police the same questions over and over again. This evidence supporting a finding
that Benitez was genuinely confus ed in the aftermath of the crash was used by trial counsel in closing to argue for a cquittal 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 s cene.
¶ 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. R ichter , 562 U.S. 86,
109 (2011) , and the strong presumption of effective assistance means that if counsel cannot remember the precise rea son for taking an action, this c ourt 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 fail ure 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 i

d. ; see als o 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 ca r. 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 th at 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 requ ired 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 hin dsight 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 diffe rent 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 effectivenes s that we must affordNo. 2020AP55

14 both trial and original postconviction counsel, along with each counsel’s Machner testimony c oncerning 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 re jecting 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 b lood 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 , 2 014 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 (co caethylene), 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 resul ts 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, eve n 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 know ledge doctrine, probable cause for Benitez’s arrest also rested on all of Hauda’s colleagues’ observations: (1) that Benitez made suspicious statements, was agitat ed , 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 d eficient nor prejudicial. Ziebart , 268 Wis. 2 d 468, ¶ 14.No. 2020AP55

16 VI. Denial of Motion for Additional Airbag F iber 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). W ISCONSIN S TAT

. § 971.23 provides a defendant with pretrial discovery rights. There is no statute providing for postconviction discove ry. 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 omi tted).
¶ 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, t he airbag fiber testing alread y showed that none of the fibers on the driver’s side airbag were consistent with Benitez’s clothing. Additionally, t his was a rollover crash that was violent enough to result in four
fatalities

. E xpert 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 W IS

. S TAT

. R ULE 809.23(1)(b)5.