|
COURT OF APPEALS DECISION DATED AND RELEASED January 9, 1997 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0192-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIE E. WILLIS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Rock County:
EDWIN C. DAHLBERG, Judge. Affirmed.
Before Eich, C.J.,
Roggensack and Deininger, JJ.
PER
CURIAM. Willie E. Willis appeals from a judgment of conviction
after a trial to the court, whereby Willis was found guilty of possessing
cocaine with intent to deliver within 1,000 feet of a school or park, contrary
to § 161.41(1m)(c)2, Stats.[1],
as well as possessing an untaxed controlled substance, contrary to
§ 139.95(2), Stats. Willis specifically argues that he received
ineffective assistance of trial counsel.
Alternatively, if trial counsel was not ineffective, Willis urges us to
find the circuit court erred in denying his motion to disclose the identity of
the State's confidential informer. We
reject both arguments and affirm.
BACKGROUND
Willis was arrested as
the result of a telephone tip from a confidential informant. The informant correctly predicted Willis
would possess cocaine in a certain type of container, and that he would appear
at a certain address at a certain time in a certain type of car. Following the tip, police apprehended Willis
with cocaine in his possession. One of
Willis' theories was that a passenger in his car, one Rufus Miller, had been
the informant. Two minutes before the
trial to the court was set to begin, defense counsel filed a motion to compel disclosure
of the confidential informant, as well as a motion to suppress evidence. The court denied the motion to compel
disclosure as untimely, and denied the suppression motion without prejudice to
be reconsidered as it arose at trial.
The suppression motion was not renewed at trial, however.
Nevertheless, Willis
pursued at trial his theory that Miller had been the informant. This was denied by both the police and
Miller, however. After Willis was found
guilty, he brought a postconviction Machner[2]
motion, alleging ineffective assistance of trial counsel. Concerning the motion to compel disclosure,
the circuit court denied the motion in part because
... if the Court had been presented with
an in camera affidavit by the informant that he had been in the company of the
defendant, or had observed the defendant earlier some minutes before, and that
he knew of the fact that the cocaine was in the possession of the defendant,
that he was going to his girlfriend's house at the end of the lane, and all of
those facts had been in the affidavit, the Court would not have found anything
that was necessary to the defense of the defendant, and that's what the test
is; not whether it might be nice to know and have the informant there to
cross-examine him whether or not he had any information that was necessary to
the Defense.
And
based upon what was given here, I conclude that he did not.
Concerning
the suppression motion, the court held
...
one of the remedies, when it is alleged that an attorney fails to bring a
motion to suppress, is to actually hold a motion to suppress and find out what
the result would do.... [However,] ...
to hold a further motion to suppress on the state of this record would be an
exercise in futility, because the defendant was alone in the car, and I am
satisfied that there was no ineffective assistance of Counsel by bringing the
-- failing to bring the motion to suppress, or to request that the Court,
during the course of the trial to bring that motion.
Thus, the court found no
ineffective assistance regarding the motion to compel on the grounds that,
regardless of when the motion had been brought, under the facts of the case,
the motion would not have been granted.
Similarly, the court found no ineffective assistance concerning the
suppression motion because it held that under the facts, the motion would have
been futile, whenever brought.
STANDARD OF REVIEW
Whether ineffective
assistance of counsel occurred is a mixed question of law and fact. State v. Pitsch, 124 Wis.2d
628, 633-34, 369 N.W.2d 711, 714 (1985).
We do not reverse factual findings unless clearly erroneous. Id. at 634, 369 N.W.2d at
714-15. See also,
§ 805.17(2), Stats. We consider legal issues de novo. Ball v. District No. 4 Area Bd.,
117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).
ANALYSIS
The circuit court's
holding was based on its conclusion that Willis failed to make the requisite
factual showing that the informant's identity was "necessary" to his
defense. See State v.
Outlaw, 108 Wis.2d 112, 140-41, 321 N.W.2d 145, 156 (1982) (Callow, J.,
concurring) (proposed testimony of informant must be "necessary to
support" the theory of the defense).
See also Rule
905.10(3)(b), Stats. (if the
State refuses to disclose an informant's identity, judicial review determines
whether reasonable probability exists that an informant may be able to give
testimony "necessary" to a fair resolution of the criminal case).
Having reviewed the
record, we agree. Even in his brief to
this court, Willis identifies no theory under which the informant's identity
was "necessary" to his defense.
Rather, he chains speculations together to argue that, had counsel filed
timely, the informant's identity could have become known, which could somehow
have helped his case. This does not
comply with Outlaw or Rule
905.10(3)(b), Stats. Further, because the suppression motion was
related to the motion to compel, both motions were properly denied.
It is not ineffective
assistance of counsel to fail to bring futile motions. Quinn v. State, 53 Wis.2d 821,
827, 193 N.W.2d 665, 668 (1972).
Therefore, no ineffective assistance of counsel occurred here, despite
the last-minute timing of the motions.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.