COURT OF APPEALS DECISION DATED AND RELEASED February 12, 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
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This opinion is subject to
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No. 96-0708-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JEFFREY BRUNET,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Waukesha County: MARIANNE E. BECKER, Judge. Affirmed and cause remanded with
directions.
Before Snyder, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. Jeffrey
Brunet presents several arguments attacking a jury verdict finding him guilty
of conspiracy to commit first-degree intentional homicide. The conviction is based on his involvement
in a plot to hire a “hit man” to kill his former wife, Natalie Teafoe.
Our analysis primarily
addresses Brunet's charge that he did not receive effective assistance of counsel. We are in partial agreement with
Brunet. We agree that defense counsel
erred by failing to object when the prosecutor improperly referred to one-party
consent recordings that Brunet's co-conspirator, Jodi Zandt, made under the
supervision of police detectives.
Moreover, we agree that defense counsel did not adequately cross-examine
Zandt regarding the details of her plea agreement. Nonetheless, because the prosecutor submitted a significant
amount of other evidence to corroborate the existence of the conspiracy, we are
confident in the jury's result. We hold
that these errors did not prejudice Brunet's defense.
Furthermore, we reject
Brunet's other argument concerning defense counsel's performance. Brunet alleges that counsel mistakenly questioned
a defense witness about her knowledge of Brunet's prior behavior, thereby
opening the door to otherwise inadmissible “other acts” evidence consisting of
his prior battery convictions. However,
we uphold the trial court's finding that defense counsel was acting pursuant to
Brunet's own strategic choice.
Moreover, we reject
Brunet's request to apply our discretionary authority to reverse his conviction
under § 752.35, Stats.,
because the “real controversy” of Zandt's credibility was never tried. We conclude that even in light of defense
counsel's errors, the jury was presented with sufficient evidence to contradict
Zandt's version of the story; her credibility was adequately tested. In addition, we reject Brunet's claim that
the prosecutor's statement during a recess in the trial, that defense counsel
was “pathetic,” is a reason to order a new trial in the interest of
justice. Brunet argues that the
prosecutor's characterization conclusively reveals that he did not receive
adequate representation. However, we
see no reason to set aside the trial court's conclusion that this statement was
“too ambiguous” to independently support a finding that defense counsel was
ineffective.
Finally, we do agree
with Brunet's claim contesting the validity of the order directing him to
reimburse the county for the attorney's fees associated with his defense. Since this nonfinal order was not
incorporated into the final judgment and sentence, it is invalid. Although we reverse this nonfinal order, we
affirm the judgment of conviction and the postconviction order.
We will begin our
analysis with a brief description of the facts surrounding the conspiracy. We will then address seriatim Brunet's
various appellate arguments.
Background
Brunet was charged with
the single count of conspiracy in October 1992. The complaint alleged that Brunet had conspired with Zandt to
hire a “hit man” to kill Teafoe, his former wife.
The case started in late
August 1991 when a city of Waukesha detective received a tip from an
investigator with the State Department of Agriculture. The investigator had learned that one of the
department's food inspectors, Zandt, had been making inquiries about obtaining
a “hit man.”
Posing as a potential
hit man, the detective contacted Zandt and arranged a meeting for September
9. There, Zandt gave him written
information about Teafoe, including her
address, a description of her car and a list of places that she
frequented. Moreover, Zandt gave the
detective two photographs.
At this meeting, the
undercover detective and Zandt also discussed the price. The detective set the fee at $5000. Zandt told him that she was going to sell a
1980 Harley Davidson to get the money.
The detective also told Zandt that he might accept the motorcycle in
trade. During a follow-up phone
conversation, the detective and Zandt agreed that the motorcycle would be given
in “trade for the murder.”
Zandt was subsequently
arrested and charged with solicitation to commit murder. She admitted her involvement, but claimed
that she was only acting at Brunet's direction, who was her boyfriend at the
time. Zandt was thus able to
reach a plea agreement with the State.
Her charge was reduced from felony solicitation to commit murder to
misdemeanor solicitation to commit assault.
In exchange, she agreed to aid the State in its prosecution of Brunet.
Pursuant to this plea
agreement, Zandt arranged to meet with Brunet in June 1992 at a department
store parking lot in Fond du Lac. She
wore an electronic monitoring device, hoping to get Brunet to admit his
involvement. Moreover, she later
permitted the police to record a phone call she made to Brunet while he was
serving a jail sentence on an unrelated charge. During these two conversations, Brunet made various incriminating
statements, including suggestions about how Zandt could easily convince the
police that he was not involved in the conspiracy.
The prosecutor's case
thus rested on the following evidence:
Zandt's testimony regarding Brunet's lead role in the conspiracy; the
testimony from the city of Waukesha detectives who conducted the undercover
investigation; and various physical evidence, including the title records
tracing the transfer of the Harley Davidson from Brunet to Zandt, and the
written information and photographs which Zandt gave to the undercover
detective. The jury found Brunet
guilty.
With this background
information in hand, we will now turn to Brunet's appellate claims, setting
forth further facts as necessary.
Ineffective Assistance of Counsel
1. Applicable Law and
Standard of Review
The two-pronged test we
employ when gauging whether a defendant received effective assistance of
counsel was set out in Strickland v. Washington, 466 U.S. 668
(1984). Under Strickland,
we ask whether trial counsel's performance was deficient and, if deficient,
whether the deficient performance prejudiced the defense. See id. at 687.
The inquiries involve a
mixture of law and fact. See State
v. Sanchez, 201 Wis.2d 219, 236, 548 N.W.2d 69, 76 (1996). A trial court's findings concerning the
circumstances of the case and defense counsel's conduct are matters of fact
that we cannot reverse unless clearly erroneous. See id.
However, whether defense counsel's conduct, in light of the
circumstances of the case, constituted deficient performance and whether this
deficient performance prejudiced the defense are issues of law which we decide
de novo. See id. at
236-37, 548 N.W.2d at 76.
2. One-Party Consent Recordings
As our outline of the
case reveals, Zandt's testimony was a very important element of the
prosecution's case. Indeed, Zandt spoke
with Brunet on two occasions with the express purpose of getting Brunet to
confess that he was involved in the conspiracy. With Zandt's consent, the investigating detectives recorded these
two conversations.
Before
trial, however, defense counsel filed a motion in limine to limit the use of
these tapes pursuant to Wisconsin's electronic surveillance law.[1] See State ex rel. Arnold v. County
Court, 51 Wis.2d 434, 442, 187 N.W.2d 354, 358 (1971). The trial court correctly ruled that even
though the conversations were monitored, Zandt could still testify about what
Brunet said to her. The court also
ruled that the contents of the tapes could be disclosed to impeach Brunet
should he take the stand. Otherwise,
the trial court sided with defense counsel and ordered that the contents of the
tapes be suppressed.
Although the prosecutor
adhered to the strict letter of this ruling, Brunet claims that the prosecution
nonetheless violated the surveillance law by making numerous “references” to
the tapes, allegedly attempting to “corroborate Zandt” and “bolster her
credibility.” Brunet argues that
defense counsel's failure to object to these repeated references demonstrates
that defense counsel was ineffective.
We agree with Brunet
that defense counsel should have objected.
We reject the State's claim that the prosecutor's references to the
tapes should not have triggered a response because of several “mitigating”
factors, such as the need to foreshadow for the jury how Zandt was going to
testify and the need to explain the terms of the plea agreement with
Zandt—wearing a wire in exchange for leniency.
The prosecutor's repeated references to the tapes signify that he
was indeed seeking much more; he was trying to bolster Zandt's credibility by
signaling to the jury that her testimony had to be credible because it was
backed up on tape. The prosecutor's
references should have triggered an objection.
See State v. Waste Management of Wisconsin, Inc., 81
Wis.2d 555, 573, 261 N.W.2d 147, 155 (1978) (“[T]he prosecutor's reference to
the tapes did not violate that statute ... [n]onetheless, the reference was
improper.”).
While defense counsel
should have objected, we need not elaborate on whether the failure to object
demonstrates that defense counsel's error proves that defense counsel was
“deficient” as a matter of law. Our
supreme court has held that an appellate court may simply presume that defense
counsel's performance was deficient and proceed directly to the issue of
whether the deficient performance prejudiced the defense. See Sanchez, 201 Wis.2d at
236, 548 N.W.2d at 76. We will follow
this shortcut.
The State cites two
primary reasons why Brunet's defense was not prejudiced. It first argues that Zandt's testimony,
regardless of the prosecution's improper references, was independently reliable
because “the story presented by the state made so much more sense than the
story presented by Brunet.”
More importantly, the
State points to other legitimate evidence that the prosecution offered to
corroborate Zandt's story. For example,
one of the detectives described how Brunet was at Zandt's apartment when the
arrest warrant was served on Zandt and that Brunet and Zandt looked like they
had just awakened. The State contends
that this testimony supports Zandt's statement that she and Brunet were intimate
and rebuts Brunet's claim (made during a police interview) that he was “not
really living with her.” The State
further explains that this testimony buttresses Zandt's statement that her
emotional ties to Brunet motivated her to “act[] on behalf of her lover.”
The State also points to
physical evidence corroborating Zandt's testimony. For example, it submitted documentary evidence demonstrating that
the title to Brunet's Harley Davidson was signed over to Zandt. While we observe that Brunet, during his
police interview, tried to offer an alternative hypothesis, it is not
convincing on its face. Although he
valued the motorcycle at approximately $4800, he also explained that he
transferred the title to Zandt as collateral for his debt to her of roughly
$600 to $700. He did not, however,
offer any explanation why he over-collateralized his debt to Zandt.
Indeed, Brunet concedes
in his reply brief that Zandt's testimony is “arguably” corroborated to the
extent that it showed that he was involved in a “plot against Natalie.” But Brunet maintains that the most crucial
aspect of Zandt's testimony was her claim that “Brunet participated in a murder-for-hire
plot” and argues that this component, except for the prosecution's improper
references, was uncorroborated.
Nonetheless, we are not
persuaded by Brunet's effort to dissect the issue of Zandt's credibility. Brunet's brief-in-chief emphasizes that
“[t]here can be no serious question that Zandt's credibility was a critical issue
in this trial.” This is exactly the
point. Zandt's overall credibility was
extremely important.
But Zandt's testimony
did not stand alone. The prosecutor
presented a sufficient amount of corroborating evidence. Aside from the prosecution's improper
references, there was other properly admitted testimony and physical evidence
supporting Zandt's version of what happened.
We reject Brunet's attempt to characterize this case as a simple claim
of “he said, she said.” To the
contrary, the prosecution was able to successfully buttress its
witness's credibility with physical evidence.
This corroborating evidence gives us confidence that the verdict did not
turn on the prosecutor's improper references to the inadmissible tapes. We conclude that defense counsel's failure
to object was not prejudicial.
3. Zandt's Credibility
Although Brunet argues
that defense counsel's “gravest single error” was the failure to object to the
prosecutor's references to the tape recordings, an issue we have resolved in
the State's favor, Brunet nonetheless claims that defense counsel made other
“blunders and mishaps” affecting the outcome.
We now turn to the first alleged mishap, defense counsel's failure to
adequately cross-examine Zandt about her deal with the State.
Brunet begins with an
excerpt from the trial transcript. He
identifies it as defense counsel's “only attempt to impeach Zandt.”
COUNSEL:Do you recall offhand
at least working with you (sic) attorney in terms of trying to obtain at least
some favorable resolution of your case?
I guess when I say favorable resolution, I am trying to make sure that
you did not have to go to prison or anything like that?
ZANDT:So what you are asking
me then is?
COUNSEL:Were those efforts
made?
ZANDT: Yes.
COUNSEL:... Did your attorney
talk to you and tell you or at least inform you as to what responsibilities
would be to get any leniency from the District Attorney in regards to your
case?
ZANDT:Yes.
COUNSEL:And did that leniency
include the fact that the charges would be reduced substantially?
ZANDT:I would say the charges
would be reduced, and there was no talk of substantially.
At
this point, the trial court sustained the prosecution's objection to the
inquiry about whether Zandt thought she would have gone to prison had she not
struck a deal. The focus of Brunet's
complaint is that the jury never learned that Zandt, by having her charges
reduced, received “so much consideration in exchange for her testimony.”
Nonetheless, we again
agree with the State that defense counsel's error was not prejudicial. Brunet's factual analysis is correct to the
extent that the above excerpt reveals defense counsel's only attempt to impeach
Zandt on these grounds. But this
excerpt does not reveal the only occasion where the jury heard information
concerning the scope of Zandt's deal with the prosecutor. The prosecutor addressed this issue at the
beginning of his direct examination of Zandt:
PROSECUTOR:As a result of
[your] cooperation, were you given consideration, ma'am?
ZANDT:Yes, I was.
PROSECUTOR: What happened?
ZANDT:I was given a reduced
sentence of solicitation to commit intentional battery I believe.
Although this
questioning did not reveal whether Zandt avoided prison because of her deal, a
defense witness (who knew Zandt and Brunet) provided the jury with this missing
link. This defense witness testified
that Zandt believed that her testimony “would determine whether she would be
looking at jail time or probation.” We
thus are satisfied that the jury, despite defense counsel's failure to explore
the issue with Zandt, had the information necessary to assess whether Zandt's
testimony should be discounted because it was given in exchange for
leniency. Defense counsel's error did
not prejudice Brunet's defense.[2]
4. Opening the Door to
“Other Acts” Evidence
We next turn to the
second of defense counsel's alleged “blunders.” During Brunet's case-in-chief, defense counsel called Laurie
Steffes. She explained that she had
been dating Brunet for five years.
Steffes tried to offer a general characterization of Brunet as a
nonviolent person.
However, because defense
counsel asked Steffes about her knowledge of Brunet's character, the trial
court permitted the State to introduce “other acts” evidence comprised of
Brunet's prior battery convictions.
Brunet now claims that defense counsel was deficient because this line
of questioning needlessly opened the door to this otherwise inadmissible “other
acts” evidence. We do not agree.
We rest our conclusion
on the trial court's findings following the Machner[3]
hearing. Here, the trial court found
that defense counsel entered into this line of questioning at Brunet's direction. The court found that defense counsel was
aware that he was on “dangerous ground,” but nonetheless followed the wishes of
his client. The court further explained
that it based this finding on its conclusion that defense counsel's testimony
was “credible; extremely credible.”
On appeal, Brunet
challenges the trial court's decision by pointing to other testimony gathered
during the Machner hearing that seems to contradict this finding,
such as his own testimony that defense counsel never asked him about his prior
convictions. However, the trial court's
findings concerning the circumstances of the trial and defense counsel's
conduct are matters of fact that we cannot reverse unless clearly erroneous. See Sanchez, 201 Wis.2d at
236, 548 N.W.2d at 76. We see no reason
to upset the trial court's finding in this case. And since defense counsel was acting pursuant to his client's
directive, we cannot reach the legal conclusion that defense counsel's
performance was deficient.
Application of § 752.35, Stats.
Under this statute, we may reverse a verdict
if it appears that the real controversy has not been tried or it is probable
that justice has been miscarried. See
State v. Schumacher, 144 Wis.2d 388, 401, 424 N.W.2d 672, 677
(1988). Brunet submits attacks on the
verdict under both prongs.
1. Zandt's Credibility
Brunet first asserts
that because of defense counsel's errors, “[t]he real controversy over Zandt's
credibility was not fully tried.” He
points to defense counsel's failure to object to the prosecution's references
to the tape recordings and counsel's failure to zealously impeach Zandt
regarding her plea agreement; he argues that the collective effect of these
errors should lead us to doubt that Zandt's credibility was really tested.
Nonetheless, we are
confident that the analysis which led us to the conclusions that the above
errors were not prejudicial to Brunet also dictates that we not reverse this
verdict pursuant to § 752.35, Stats. Brunet's argument correctly identifies that
Zandt's testimony (and thus her credibility) was crucial. But although we emphasize above that the
prosecutor submitted substantial evidence corroborating Zandt's story, this
does not mean that the jury heard nothing to impeach her story. There was information before the jury that
could have supported Brunet's theory that Zandt was the instigator and he was
accidentally dragged in. For example,
the jury heard information that Brunet had another girlfriend and thus could
conclude that Zandt had acted out of jealousy.
It was the jury's role to look at the evidence and make a decision about
which story was correct. We decline to
exercise our discretionary power and reverse Brunet's conviction.
2. The Prosecutor's Statement
During a recess in the
proceedings, the prosecutor was overheard making negative statements about the
quality of defense counsel's courtroom performance. Brunet's witness claims that the prosecutor used the terms “pathetic”
and “worst he had ever seen” or something very similar. Brunet contrasts the hallway statements of
the prosecutor with the prosecutor's later representation to the court that
“[t]here has been nothing in this record to even remotely approach ineffective
claims.” Based on the prosecutor's
seemingly contrary positions inside and outside the courtroom, Brunet suggests
that “[h]ad the prosecutor been honest with the court at trial and admitted
that trial counsel's performance was ineffective, the result would have been a
mistrial.” Brunet asks us to reverse
his conviction in the interest of justice.
The State objects to how
Brunet “besmirches” the prosecutor. The
State explains that the prosecutor could not have possibly misled the court
about defense counsel's performance because “the court was there.” Moreover, the State dismisses the
prosecutor's hallway statement as irrelevant because it was nothing more than
“heat-of-battle bravado” made by an “adrenaline-pumped” attorney.
We do not, however, have
to answer whether the prosecutor misled the court or whether his statement
carried any legal significance. The
bottom line is that Brunet brought this statement to the trial court's
attention during posttrial proceedings, and the court ultimately concluded that
it was insignificant. While the court
accepted that the prosecutor made this statement, because the prosecutor was
not called to testify, the court found that it could not reach any positive
conclusion about what the prosecutor meant.
The court accordingly determined that this simple statement, standing
alone, was “too ambiguous” to be grounds for finding that defense counsel's
performance was ineffective. Because
the trial court was in the best position to assess the effectiveness of counsel
at the time the prosecutor's out-of-court comments came to light and because it
is not the prosecutor who determines effectiveness but the court, we conclude
that the trial court did not misuse its discretion and we will not use
§ 752.35, Stats., to
overturn the judgment.
Order Directing Brunet to Pay
Attorney's Fees
This is the last of
Brunet's appellate claims. On June 22,
1993, the trial court issued a written order appointing defense counsel. This order, moreover, directed Brunet to “reimburse
the County of Waukesha for services rendered at the rate of $60.00 per
hour.” However, since this order was
not incorporated into the final sentencing order, Brunet claims that it is
invalid. He is correct.
In State v. Grant,
168 Wis.2d 682, 685, 484 N.W.2d 370, 371 (Ct. App. 1992), this court held that
attorney's fees could not be taxed against a criminal defendant in an order
separate from the sentence. Thus,
pursuant to Grant, we direct that the trial court vacate the
portion of the June 22, 1993, order that directs Brunet to reimburse the county
for those fees.[4] We otherwise affirm the judgment of
conviction and the postconviction order.
By the Court.—Judgment
and order affirmed and cause remanded with directions.
Not recommended for
publication in the official reports.
[1] This motion was filed by Attorney William J. Reddin. Before the trial court ruled on this motion, however, Reddin filed a motion to withdraw from the case. The trial court granted this motion and Attorney Thomas Awen was appointed as Brunet's trial counsel. Brunet's various allegations are directed at Awen.
[2]
As we explained above, defense counsel did try to ask Zandt if she
believed that she would have gone to jail if she had not entered into the deal
with the prosecution. This inquiry,
however, was ended when the trial court sustained the prosecutor's objection
that such a response would have required Zandt to speculate.
The State, however, seems to concede that defense counsel may not have erred because Zandt's belief about whether she would have gone to prison was indeed relevant. Hence, the trial court may have erred when it sustained the prosecutor's objection. Nonetheless, since defense counsel's error was not prejudicial to Brunet's defense, we are equally confident that the trial court's ruling was harmless error. See State v. Sanchez, 201 Wis.2d 219, 230-31, 548 N.W.2d 69, 74 (1996) (noting that the test of whether the defense was prejudiced is “substantively the same” as the harmless error rule).
[4] Although this June 22, 1993, order is not incorporated into the judgment of conviction or the postjudgment order from which Brunet appeals, this nonfinal order is nonetheless properly before us. See Rule 809.10(4), Stats. (“An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant ....”).