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COURT OF APPEALS DECISION DATED AND RELEASED April 1, 1997 |
NOTICE |
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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.
96-0413-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Anthony James Daniels,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DOMINIC S. AMATO, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER CURIAM. Anthony James Daniels appeals from a
judgment of conviction, following a jury trial, for first-degree sexual
assault, contrary to § 948.02(1), Stats.,
and from the trial court order denying his motion for postconviction
relief. He presents several issues and
also contends that the trial court erred in denying his postconviction motion
without first having held an evidentiary hearing. We affirm.
I. FACTUAL BACKGROUND
On November 12, 1994,
twelve-year-old Monique P. spent the night at her girlfriend's house where
Daniels, a cousin of the girlfriend, also resided. At approximately 10:00 p.m., the girls went to bed. After she had fallen asleep, Monique was
partially awakened when she felt something between her legs. Moments later, she again felt something
between her legs, awoke, and found Daniels in bed with her.
A struggle ensued;
Monique fled to the bathroom and locked the door behind her. After staying in the bathroom for
approximately thirty minutes, she left the bathroom, entered the living room,
and saw Daniels through the bedroom doorway.
He began whispering to her, trying to lure her back to bed. She told him to leave her alone and
threatened to tell someone.
The next evening Monique
told her mother about the assault.
Following an investigation, Daniels was charged with two counts of
second-degree sexual assault. The
information was later amended to two counts first-degree sexual assault. The jury acquitted him of the first count
and convicted him of the second. The
court sentenced him to twenty-five years in prison. After sentencing, Daniels moved for a new trial based on newly
discovered evidence and ineffective assistance of counsel. He also moved for
sentence modification. In a written
order, the trial court concluded that no hearing was necessary and denied the
motion.
II. ANALYSIS
A.
Newly Discovered Evidence
Daniels first argues
that newly discovered evidence requires a new trial. He contends that newly discovered inconsistent statements “cast[
] considerable doubt on the complaining witness's credibility.” According to the allegations in the
affidavits offered in support of the postconviction motion, Daniels drove
Monique to a baby shower less than twenty-four hours after the assault. During the ride to the shower, Monique was
sitting in the back seat, laughing and singing with her friends. Later in the afternoon, she was dancing with
other children and making provocative overtures to Daniels. Monique also made statements to Daniels's
cousin, Bridget, asking what she (Bridget) would do if she (Bridget) would be
sexually abused by her (Bridget's) mother's boyfriend. Daniels contends that the information
contained in these affidavits meets the requirements for newly discovered
evidence and requires a new trial. We
disagree.
“Motions for new trial
based on newly discovered evidence are entertained with great caution.” State v. Terrance J.W., 202
Wis.2d 497, 501, 550 N.W.2d 445, 447 (Ct. App. 1996). A reviewing court will affirm the trial court's exercise of
discretion as long as it has a reasonable basis and was made in accordance with
accepted legal standards and facts of record. State v. Jenkins, 168 Wis.2d 175, 186, 483 N.W.2d 262,
265 (Ct. App.), cert. denied, 506 U.S. 1002 (1992). The trial court may grant a new trial based
on newly discovered evidence only if:
(1) the evidence came to the moving party's knowledge after the
trial; (2) the moving party has not been negligent in seeking to discover
it; (3) the evidence is material to the issue; (4) the evidence is
not merely cumulative to that which was introduced at trial; and (5) it is
reasonably probable that a new trial will reach a different result. State v. Kaster, 148 Wis.2d
789, 801, 436 N.W.2d 891, 896 (Ct. App. 1989).
If the newly discovered evidence fails to meet any of these tests, the
moving party is not entitled to a new trial.
Id.
In reviewing Daniels's
claim, we need not consider all the tests because it is clear that most of
Daniels's “newly discovered” evidence fails the first test and the rest fails
the third. Daniels knew most of the
information contained in the affidavits before the trial; he witnessed
Monique's alleges conduct in the car and at the baby shower. Further, if Daniels was unaware of Monique's
alleged conversation with Bridget, this “new evidence” is not, as Daniels
claims, an inconsistent or exculpatory statement material to any issue. Contrary to Daniels's assertion on appeal,
the conversation cannot be interpreted as an accusation against Monique's
mother's boyfriend. As the trial court
noted:
[Monique's]
questioning of Bridget ... is wholly consistent with her fear or her reluctance
to tell her mother about the incident.
The affidavit of Bridget ... states Monique said she was “scared.” The evidence adduced at trial supports this
characterization of Monique's state of mind and her statement regarding the
same. [Furthermore,] if the defendant
is suggesting that it was the boyfriend of Monique's mother who committed the
assault rather than the defendant ... there is absolutely no support for this
assertion. There is no affidavit to the
effect that [Monique's mother] had a boyfriend at the time, that he had met
Monique, or that he was in a position to sexually assault the victim....
Thus, we conclude the
trial court correctly denied Daniels's motion for a new trial based on new
discovered evidence.
B. Due
Process
Daniels next argues that
the trial court erred in denying his motion for mistrial. He claims that he was denied his state and
federal due process rights to a fair trial because a police officer testified
that he had obtained a photograph of Daniels from the Bureau of Identification,[1]
thus allowing the jury to infer that he had a criminal record.
While this court has
discretion to review constitutional claims made for the first time on appeal,
we need not do so if the defendant fails to address the issue adequately in his
brief to this court. See State v.
Sharp, 180 Wis.2d 640, 647-48 n.2, 511 N.W.2d 316, 320 n.2 (Ct. App.
1993). Daniels's very brief argument
offers nothing in support of his claim.
Moreover, we note that Daniels failed to move to strike the testimony
and failed to request the court to admonish the jury to disregard it. Thus he waived this claim. See State v. Williamson, 84
Wis.2d 370, 391, 267 N.W.2d 337, 347 (1978).
C. Ineffective Assistance of Counsel
Daniels further argues
that the trial court should have held a Machner[2]
hearing to determine whether trial counsel was ineffective for failing “to
present general reputation evidence for the untruthfulness of the
complainant.” Although Daniels, in his
brief to this court, fails to identify what evidence he has in mind, and fails
to explain the potential impact of such evidence on the result of the trial, we
assume he again is referring to the previously-discussed information in the postconviction
affidavits. In reviewing Daniels's
motion and the affidavits, the trial court concluded that no hearing was
necessary because it was not reasonably probable that this evidence would have
produced a different result. We agree.
We review a trial
court's denial of an evidentiary hearing under the two-part test enunciated in State
v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996):
If
the motion on its face alleges facts which would entitle the defendant to
relief, the circuit court has no discretion and must hold an evidentiary
hearing. Whether a motion alleges facts
which, if true, would entitle a defendant to relief is a question of law that
we review de novo.
However, if the motion fails to allege
sufficient facts, the circuit court has the discretion to deny a postconviction
motion without a hearing based on any one of the three factors enumerated in Nelson
[v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972).]
Id. at
310-11, 548 N.W.2d at 53 (citations omitted).
In Nelson, the supreme court stated that “if the defendant
fails to allege sufficient facts in his motion to raise a question of fact, or
presents only conclusionary allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the trial court may
... deny the motion without a hearing.”
Nelson, 54 Wis.2d at 497-98, 195 N.W.2d at 633.
In this case, the trial
court correctly concluded that Daniels failed to offer anything more than
conclusory allegations of ineffective assistance of counsel. Daniels's motion merely asserted that
“defense counsel failed to impeach the complaining witness's credibility by
presenting extrinsic evidence of her bad reputation for untruthfulness.” Daniels has failed to allege facts that, if
true, would have established that counsel's failure to use this information constituted
deficient performance or was prejudicial.
As the trial court explained:
The victim's allegations were substantially
consistent throughout the course of the investigation.... Throughout the trial, counsel repeatedly
sought to impeach the victim's credibility.
On many occasions, he brought out inconsistencies in the various
statements Monique P. gave to family and police, as well as the preliminary
hearing. Despite these minor
inconsistencies, the jury believed her.
The current affidavits ... do not set forth grounds which are reasonably
probable to secure a different result or alter
the jury's verdict.
The
trial court's written decision demonstrates accurate examination of the facts,
application of the correct legal standard, and a rational decision making
process. See Bentley,
201 Wis.2d at 318, 548 N.W.2d at 57.
Accordingly, we conclude that the trial court did not erroneously
exercise discretion in denying Daniels's motion without an evidentiary hearing.
D. Discretionary Reversal
Daniels next argues that
we should grant discretionary reversal and order a new trial under § 752.35, Stats.[3] Daniel contends that his ability to question
the complainant's credibility was compromised because the jury did not hear the
evidence set forth in the affidavits.
Thus, he believes the real controversy has not been tried. We disagree.
The power of
discretionary reversal should be exercised “only in exceptional cases.” Vollmer v. Luety, 156 Wis.2d
1, 11, 456 N.W.2d 797, 802 (1990).
Under § 752.35, Stats., we
will grant discretionary reversal only where the real controversy has not been
fully tried or where justice has miscarried.
Once again, we note that
Daniels seized numerous opportunities to attack Monique's credibility;
nevertheless, the jury believed her version of the events. We conclude, therefore, that Daniels has
failed to establish that justice requires a new trial.
E. Sentencing Discretion
Daniels further claims
that, in sentencing, the trial court was not impartial; that it erroneously
exercised discretion and ordered a sentence that is unduly harsh.
In reviewing whether a
trial court erroneously exercised its sentencing discretion, we consider
whether the trial court considered appropriate factors and whether the trial
court imposed an excessive sentence. State
v. Glotz, 122 Wis.2d 519, 524, 362 N.W.2d 179, 182 (Ct. App.
1984). Appellate review is tempered by
a strong policy against interfering with the sentencing discretion of the trial
court. State v. Larsen,
141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987). Further, the trial court is presumed to have
acted reasonably, and the defendant bears the burden of showing
unreasonableness from the record. State
v. Echols, 175 Wis.2d. 653, 681-82, 499 N.W.2d 631, 640, cert.
denied, 510 U.S. 889 (1993).
Our review is limited to
a two-step inquiry. We first determine
whether the trial court properly exercised discretion in imposing
sentence. If so, we then consider
whether that discretion was erroneously exercised by imposing an excessive
sentence. See Glotz, 122
Wis.2d at 524, 362 N.W.2d at 182. When
a defendant argues that his or her sentence is unduly harsh or excessive, we
will find an erroneous exercise of discretion “only where the sentence is so
excessive and unusual and so disproportionate to the offense committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances.” Ocanas v. State, 70 Wis.2d 179, 185, 233 N.W.2d
457, 461 (1975).
The sentencing court
must consider three primary factors:
(1) the gravity of the offense; (2) the character of the
offender; and (3) the need to protect the public. State v. Harris, 119 Wis.2d
612, 623, 350 N.W.2d 633, 639 (1984).
The court may also consider: the
defendant's record; the defendant's history of undesirable behavior patterns;
the defendant's personality, character and social traits; the presentence
investigation reports; the viciousness or aggravated nature of the defendant's
crime; the degree of the defendant's culpability; the defendant's demeanor at
trial; the defendant's age, educational background and employment record; the
defendant's remorse, repentance or cooperativeness; the defendant's
rehabilitative needs; the rehabilitative needs of the victim; the needs and
rights of the public; and the length of the defendant's pretrial
detention. State v. Jones,
151 Wis.2d 488, 495-96, 444 N.W.2d 760, 763-64 (Ct. App. 1989). Additionally, the weight given each of these
factors is within the trial court's discretion. State v. Curbello-Rodriguez, 119 Wis.2d 414, 434, 351
N.W.2d 758, 768 (Ct. App 1984).
The record reflects the
trial court's consideration of all the required sentencing criteria. The trial court referred to the gravity of
the offense and the need to protect the public. The court also noted Daniels's criminal history and, relying
extensively on the presentence report and its description of Daniels's history
of violence, the court considered the appropriate sentencing factors and
adequately explained the bases for the sentence it imposed. Daniels has offered nothing to support his
claim that the sentencing court was not impartial.
Therefore, we cannot
conclude that the sentencing court erroneously exercised its discretion. Further, we cannot conclude that “the
sentence is so excessive and unusual and so disproportionate to the offense
committed so as to shock public sentiment and violate the judgment of
reasonable people concerning what is right and proper under the
circumstances.” Ocanas,
70 Wis.2d at 185, 233 N.W.2d at 461.
The court sentenced Daniels to twenty-five years in prison for
first-degree sexual assault; thus, the sentence is well within the statutory
maximum of forty years. Under the
circumstances, the sentence was not unduly harsh or excessive. See State v. Daniels, 117
Wis.2d 9, 22, 343 N.W.2d 411, 417-18 (Ct. App. 1983) (“A sentence well within
the limits of the maximum sentence is not so disproportionate to the offense
committed as to shock the public sentiment and violate the judgment of reasonable
people concerning what is right and proper under the circumstances.”).
III. CONCLUSION
Accordingly, we reject
Daniels's arguments and affirm the judgment of conviction and the order denying
his motion for postconviction relief.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Daniels overstates the officer's
testimony. The record reflects:
Q[PROSECUTOR] And pursuant to that information which you
had from [the victim] and your conversations with other officers, did you have
occasion to put together a photo array for [the victim] to look at so that you
had a picture of the person who did this?
A[POLICE
OFFICER] Yes, I did.
....
QAnd how
did you go about doing that?
AWe ran a
check through our Bureau of Identification to see —
QAll
right, let me just stop you there. Were
you able to get a photograph of Anthony Daniels?
AYes.
[3] Section 752.35, Stats., in relevant part, states:
Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment ... regardless of whether the proper motion or objection appears in the record and may ... remit the case to the trial court ... for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.