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COURT OF APPEALS
DECISION
DATED AND FILED
June 1, 2011
A. John
Voelker
Acting Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Jimmie
C. Grayer,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: jeffrey a.
wagner, Judge. Affirmed.
Before Curley, P.J.,
Fine and Kessler, JJ.
¶1 FINE, J. Jimmie C.
Grayer appeals the judgment
entered on a jury verdict finding him guilty of first-degree reckless injury
(use of a dangerous weapon), see Wis. Stat. §§ 940.23(1)(a) & 939.63,
and from an order denying his motion for postconviction relief. He claims that his trial lawyer gave him
constitutionally deficient representation and that the trial court should have
granted him an evidentiary hearing because his trial lawyer: (1) told the jury his statement to
police was not recorded (when in fact it had been recorded, and the prosecutor
played part of the recording for the jury); (2) did not object when the
prosecutor called Grayer’s act “intentional” during closing argument; (3) did
not object when the prosecutor made sarcastic remarks during the State’s
rebuttal argument; and (4) should have requested the lesser-included
defense of second-degree reckless injury. We affirm.
I.
¶2 On August 1,
2007, Grayer was home alone when his stepson, Henry Williams,
came into the house and according to Grayer, repeatedly called him names
including “punk bitch ass nigga.” Williams threw a half-full bottle of Gatorade at Grayer that,
according to Grayer, hit him in the face.
In response, Grayer, picked up his handgun and shot in Williams’s direction, striking him in the back. The bullet hit Williams’s
spinal cord and, at the time of trial, he was partially paralyzed from the
waist down.
¶3 The police arrested Grayer and he admitted shooting Williams. In his
statement to the investigating detective, Grayer said:
•
The day before the shooting, Williams
had come into the house during the middle of the night, made a lot of noise,
and left with what Grayer thought was a rifle.
•
He took out his handgun because he feared that someone
would come to the house “trying to retaliate what went down last night.”
•
On the day of the shooting, he had called 911 to report
seeing “four boys and [his stepson] Henry”
“wrapping” “a rifle” “with this towel” and putting it under the hood of a car
in his driveway. Grayer told the 911
operator that he believed the boys were preparing to do a driveby shooting.
•
He thought Williams was mad because Grayer “squealed”
on him and his friends when he called 911, and that this was the reason for the
name-calling and Gatorade attack.
¶4 The State charged Grayer with first-degree reckless injury. He pled not guilty, claiming he acted in self-defense. His first trial ended in a mistrial, asked
for by his lawyer, to allow DNA testing on the handgun. Before the mistrial, however, Grayer’s trial
lawyer on cross-examination asked the detective who interviewed Grayer: “[W]as the interview of Jimmie Grayer
recorded?” and the detective testified: “Yes.
… [O]n audio.”
¶5 The case was retried in April of 2009. During the opening statement on the retrial, the
prosecutor told the jury, “You will hear Mr. Grayer’s
statement.” Grayer’s trial lawyer then told the jury in the defense
opening:
I’m going to correct something that was said. [The prosecutor] just told you that you’re
going to hear Mr. Grayer’s statement. You will not be hearing Mr. Grayer’s
statement. You may be hearing what the
detective says Mr. Grayer said.
But
there was no recording made. Because the
time this statement was supposed to have been taken, the police department was
not required at that time to record these statements. There are none. This is not a recorded statement.
So you
will not be hearing Mr.
Grayer’s statement. I wish you had that chance, but you
don’t. You’re only going to be hearing
what the detective says he said.
As we have seen, Grayer’s
statement to police was, in fact, recorded.
Part of the recording was played for the jury during the re-trial. At the jury instruction conference, Grayer’s
lawyer told the trial court that he would not ask for any lesser-included
defenses. The trial court asked Grayer
if that was true, and Grayer confirmed that he did not want any lesser-included
defenses.
¶6 During the State’s summation, the prosecutor argued that
Grayer’s action was not self-defense, and “might be worse than reckless. It might be intentional.” In the defense summation, Grayer’s lawyer
focused on Grayer’s character, emphasizing that he was a “good, decent,
God-fearing, hard working man, somebody who has worked for the city, that’s
most of you and me and him and him for 28 years whose lived the life of a model
citizen.” He contrasted Grayer’s
character with the stepson’s, calling Williams “the
child from hell,” “a violent man,” who is “beyond disrespectful,” and a child
“[m]ost of us … would drive … to Children’s Court and turn them in with guns
and drugs and violence.”
¶7 The prosecutor, in his rebuttal, sarcastically argued: “Maybe after working for 28 years with the
city we should just issue people who put in that kind of time a hunting license
for the youth of Milwaukee. Go
ahead. Shoot one.” As we noted, the jury found Grayer guilty,
and the trial court summarily denied his postconviction motion.
II.
¶8 Grayer argues that his trial lawyer gave him constitutionally
deficient representation in four respects, and that the trial court should have
granted him an evidentiary hearing.
Before we address his arguments, we set out the applicable standards.
¶9 To establish constitutionally deficient representation, a
defendant must show: (1) deficient
representation; and (2) resulting prejudice. Strickland
v. Washington,
466 U.S.
668, 687 (1984). To prove deficient
representation, a defendant must point to specific acts or omissions by his or
her lawyer that are “outside the wide range of professionally competent
assistance.” Id., 466 U.S.
at 690. 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. 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. This is not, however, “an
outcome-determinative test. In decisions
following Strickland, the Supreme Court has re-affirmed
that the touchstone of the prejudice component is ‘whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.’” State v. Smith, 207 Wis. 2d 258, 276, 558 N.W.2d 379, 386 (1997)
(citations and quoted source omitted).
We 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.
¶10 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 trial 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 only if the defendant “alleges sufficient material
facts that, if true, would entitle the defendant to relief.” State v. Allen,
2004 WI 106, ¶9, 274 Wis.
2d 568, 576, 682 N.W.2d 433, 437. If the
defendant’s motion does not raise facts sufficient to entitle him to relief, or
presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the trial court has
the discretion to grant or deny the hearing.
State v. Love, 2005 WI 116, ¶26, 284 Wis. 2d 111, 123, 700 N.W.2d 62, 68. “Whether the Record ‘conclusively
demonstrates that the defendant is not entitled to relief’ is a legal issue
that we review de novo.” State v. Marks, 2010 WI App 172,
¶13, 330 Wis.
2d 693, 706, 794 N.W.2d 547, 554 (one set of quote marks omitted).
A.
Opening
statement.
¶11 Grayer argues that his lawyer was constitutionally ineffective
because he told the jury that Grayer’s statement to police was not recorded,
when in fact it was, and the prosecutor played part of it for the jury. The State concedes, and we agree, that the
lawyer was deficient by telling the jury that the interrogation was not
recorded. Grayer has not shown
prejudice, however.
¶12 Grayer contends that he was
prejudiced because: (1) “one can
only assume that trial counsel lost credibility” and (2) the deficiency was so
great, prejudice is automatic (relying on Anderson v. Butler, 858 F.2d 16 (1st
Cir. 1988)).
1.
Credibility
¶13 In order to
get an evidentiary hearing, Grayer must allege facts, which if true, show
prejudice. He cannot rely solely on the
conclusory assumption that his trial
lawyer probably lost credibility with the jury.
See Allen, 2004 WI 106, ¶26, 274 Wis. 2d at 587, 682 N.W.2d at 443–444. He does not submit any facts supporting his
conclusory assumption. As the State
points out, the “jury had no reason to believe this [incorrect statement] was
anything other than an honest mistake.” Significantly,
as the State also tells us, the defense lawyer’s misstatement was not “called …
to the jury’s attention at any point.” Grayer
does not point out how the misstatement made the verdict “unreliable” or
“unfair.” See State v. Pettit, 171
Wis. 2d 627,
646, 492 N.W.2d 633, 642 (Ct. App.
1992) (We may reject undeveloped arguments that are supported by only general
statements.).
2.
Automatic Prejudice
¶14 In Anderson, during the defense lawyer’s opening statement, he
promised the jury “he would call a psychiatrist and a psychologist,” who would
testify that Anderson was “‘walking unconsciously towards a psychological no
exit … Without feeling, without any appreciation of what was happening, … like
a robot programmed on destruction.’” Anderson,
858 F.2d at 17. The defense lawyer did
not call the promised witnesses who were to flesh out the defense theory. Ibid. Anderson held that the trial
lawyer’s conduct was “prejudicial as a matter of law” because the “promise [the
lawyer made during opening] was dramatic, and the indicated testimony
strikingly significant.” Id., 858
F.2d at 17, 19. Anderson
found significant that: (1) the
defense lawyer made the claim in the opening statement the day before resting
his case, so it was fresh in the jurors’ minds; and (2) the defense lawyer
started the closing argument by telling the jurors he decided against calling
the medical witnesses because the lay witnesses had adequately described Anderson’s state of mind. Id.,
858 F.2d at 17–19.
¶15 The trial court ruled Anderson was not applicable
here because Grayer’s lawyer “did not promise specific testimony from any particular
witness which would have been ‘strikingly significant.’ … and it did not rise
to the level of an ‘unfulfilled promise.’” Although wrong, the defense lawyer’s
misstatement was not, as we have seen, prejudicial. Further, unlike the situation in Anderson
(which would not be binding on us in any event, see State v. Beauchamp,
2010 WI App 42, ¶17, 324 Wis. 2d 162, 177–178, 781 N.W.2d 254, 261, aff’d, 2011 WI 27, ___ Wis. 2d ___,
___ N.W.2d ___ (“On federal questions, Wisconsin courts are bound only by the
decisions of the United States Supreme Court.”), the defense lawyer’s promise
did not leave any substantive promise
unfulfilled because Grayer admitted making the statement to police and did not dispute
any portions played for the jury. Grayer
also testified at the trial, and admitted shooting Williams,
but claimed it was in self-defense.
B. Failure to object during the State’s closing
argument.
¶16 Grayer’s second claim that his trial lawyer gave him
constitutionally deficient representation is that his lawyer did not object
when the prosecutor argued in summation:
So I submit to you it is reasonable to assume that Mr. Grayer
picked up what [defense lawyer] called a missile, he had the gun and he went
after him. He walked down that hall and
then he fired. It might be worse than
reckless. It might be intentional. But all you have to know is that it was
absolutely reckless. Reckless for him to
even put his hands on the gun in the middle of a heated argument. But [w]hat he did was worse.
¶17 Grayer argues that his lawyer should have objected because the
jury would not know what “intentional” meant under the law. This argument is wholly without merit. Grayer’s theory of defense was that he acted
in self-defense; therefore, the trial court instructed the jury that Grayer was
allowed to “intentionally use force”
if he reasonably believed his life was in danger. Grayer does not explain how he was prejudiced
by the prosecutor’s closing argument. See Pettit, 171 Wis.
2d at 646, 492 N.W.2d at 642.
C. Failure
to object during the State’s rebuttal argument.
¶18 Grayer claims that his trial lawyer was deficient because he
did not object to statements that the prosecutor made in his rebuttal summation:
I
don’t know, maybe [the defense lawyer] is right. Maybe after working for 28 years with the
city we should just issue people who put in that kind of time a hunting license
for the youth of Milwaukee. Go ahead.
Shoot one. Have a ball. That’s his defense. That’s what he wants you to buy. If you think that makes sense go ahead and
acquit him. It is ridiculous.
¶19 Grayer claims this was “outrageous” and his lawyer should have
objected. We disagree. A prosecutor has “considerable latitude” in
closing argument. State v. Draize, 88 Wis. 2d 445, 454, 276
N.W.2d 784, 789 (1979) (“The prosecutor may ‘comment on the evidence, detail
the evidence, argue from it to a conclusion and state the evidence convinces
him and should convince the jurors.’”) (citation omitted). The prosecutor’s argument here was fair
comment on the evidence because it responded to the defense lawyer’s attempt to
contrast the respective characters of Grayer and Williams. Thus, the defense lawyer was not ineffective
by not objecting. See State v. Cummings, 199 Wis. 2d 721, 747 n.10,
546 N.W.2d 406, 417 n.10 (1996) (lawyer’s failure to make a meritless objection
is not deficient performance).
D Failure to request lesser-included instruction.
¶20 Grayer claims that his trial lawyer should have asked for a
lesser-included instruction on second-degree reckless injury. At the jury instruction conference, however,
Grayer’s lawyer said, “We’re not requesting lesser includeds.” The trial court confirmed that the defense
lawyer had discussed this with Grayer, and then specifically asked Grayer:
THE COURT: You do
not want a lesser included?
THE DEFENDANT: No.
THE COURT: Is that
correct?
THE DEFENDANT: Yes.
THE COURT: And
you’ve discussed that with your lawyer?
THE DEFENDANT: Just
now, yes.
THE COURT: And it’s
your choice not to have a lesser included; right?
THE DEFENDANT: Yes.
The following morning, the
defense lawyer raised the lesser-included issue again, explaining to the trial
court that he “had explained to Mr.
Grayer generally what a lesser
included was and my recommendation to him,” but “I did not explain to him
anything about second degree reckless injury.” He was bringing this up again because he took
the time to go over the specific lesser-included defense of second-degree
reckless injury and “explain[ed] the
difference” between the lesser-included defense of second-degree reckless
injury and first-degree reckless injury.
The trial court then asked Grayer:
THE COURT: And
you’ve discussed like we discussed yesterday whether or not you wanted a lesser
included and the representation from yourself was that you did not. Has your position changed this morning?
DEFENDANT: No, it
has not.
THE COURT: So you
don’t want a lesser included?
DEFENDANT: No.
¶21 The Record conclusively shows that the decision to not request
a lesser-included defense was a jointly-decided strategic decision. Thus, Grayer cannot now claim that the
selected strategy constitutes ineffective assistance. See Strickland, 466 U.S. at 690–691 (Matters of reasonably sound
strategy are “virtually unchallengeable” and do not constitute ineffective
assistance.); 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.”).
III.
¶22 In sum, the Record shows conclusively that Grayer’s contentions
that his trial lawyer gave him constitutionally deficient representation are wholly
without merit. Thus, the trial court did
not erroneously exercise its discretion when it denied Grayer’s claim without
holding an evidentiary hearing. See Love,
2005 WI 116, ¶26, 284 Wis.
2d at 123, 700 N.W.2d at 68.
By the Court.—Judgment and order affirmed.
Publication in the official
reports is not recommended.