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COURT OF APPEALS DECISION DATED AND RELEASED March 25, 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.
96-0869-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Michael W. Jones,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER
CURIAM. Michael W. Jones appeals from a judgment of conviction
for possession of cocaine with intent to deliver within 1000 feet of a
school. See §§ 161.16(2)(b)1,
161.41(1m)(cm) and 161.49, Stats. He also appeals from an order denying his
postconviction motion. Jones raises two
issues for review: whether the trial
court erred in denying his postconviction motion without a hearing; and whether
the trial court erred in denying him his right to self-representation. We affirm.
Jones was charged with
one count of possession of cocaine with intent to deliver within 1000 feet of a
school. See §§ 161.16(2)(b)1,
161.41(1m)(cm), and 161.49, Stats. On the eve of trial, defense counsel filed a
motion to withdraw. The motion was
denied by the trial court. During
trial, defense counsel stipulated that the crime had occurred within 1000 feet
of the Grand Avenue Middle School.
Further, defense counsel did not challenge the chain-of-custody of the
cocaine found at the scene. Jones was
found guilty as charged.
Jones filed a
postconviction motion alleging that defense counsel was ineffective for
entering into a stipulation that the crime occurred within 1000 feet of a
school, and that defense counsel was ineffective for failing to challenge the
chain-of-custody of the cocaine found at the crime scene. He further alleged that the trial court erred
in refusing to allow him to represent himself at trial while denying defense
counsel's motion to withdraw. The trial
court denied the motion without an evidentiary hearing.
Jones first argues that
the trial court erred when it denied his postconviction motion without an
evidentiary hearing.[1] In order to warrant an evidentiary hearing
on a postconviction motion, a defendant must allege facts, which if true, warrant
the relief sought. State v.
Bentley, 201 Wis.2d 303, 309, 548 N.W.2d 50, 53 (1996). If a defendant fails to allege sufficient
facts in his motion to raise a question of fact or presents only conclusory
allegations or if the record conclusively demonstrates that the defendant is
not entitled to relief, the trial court may, in the exercise of its discretion,
deny the motion without a hearing. Id.,
201 Wis.2d at 309-310, 548 N.W.2d at 53.
Here, the postconviction motion must raise an issue of fact regarding
whether trial counsel's performance was deficient and, if so, whether the
deficient performance prejudiced the defendant in order to warrant a
hearing. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
To prevail, Jones must show both that his attorney's performance was
deficient and that such performance prejudiced his defense. Id.
In his postconviction
motion, Jones contends that defense counsel was ineffective for stipulating
with the prosecution that the crime took place within 1000 feet of a
school. Jones, however, provides
nothing in his motion to indicate that the crime did not occur within
1000 feet of a school. Jones's motion,
therefore, fails to raise a factual question of whether he was prejudiced by
the performance of defense counsel because Jones failed to show a reasonable
probability that, but for defense counsel's alleged deficiency, it could have
been proven that the crime did not occur within 1000 feet of the
school. See Strickland,
466 U.S. at 694.
Jones also contends that
defense counsel was ineffective for failing to challenge the chain-of-custody
of the cocaine found at the scene. Two
officers testified at the trial, Officer Mark Walton, the policeman who had
Jones under surveillance, and Officer Kevin Armbruster, a policeman who was
working in an unmarked squad car in the area.
Officer Walton testified that he saw Jones negotiate what Officer Walton
perceived to be a drug deal in the 900 block of North 24th Street. Officer Walton was in a building across the
street from Jones with binoculars observing drug activity in the area. Officer Walton further testified that he
radioed Officer Armbruster with a description of Jones and his location in
order for Officer Armbruster to arrest Jones.
As Officer Armbruster arrived at the scene, Officer Walton continued to
watch Jones with the binoculars. He saw
Jones toss a baggy onto the ground.
Officer Walton testified that he radioed Officer Armbruster and told him
about the dropped baggy. According to
Officer Walton, Officer Armbruster immediately retrieved the “exact baggy that
the defendant threw down.”
Officer Armbruster
testified that he gave the baggy to the Milwaukee Police Department Vice
Control Division who tested the contents of the baggy for cocaine in his presence. Officer Armbruster then testified that he
personally sealed the cocaine in a plastic baggy, placed it in a manila
envelope and labeled the envelope with an identification number.
A Wisconsin state crime
lab chemist testified that when she examined the package during her analysis of
its contents, it was sealed and contained the same inventory number used by
Officer Armbruster in labeling it. The
chemist then testified that after she tested its contents, she put the evidence
into an envelope, sealed it, labeled it, and gave it to Officer Fred Rehorst,
the officer who conveyed the evidence to and from the crime laboratory.
Jones argues that the
above did not establish a sufficient chain-of-custody regarding the cocaine
because Officer Rehorst did not testify at trial and that defense counsel,
therefore, should have objected to admission of the cocaine at the trial. The above noted testimony, however,
demonstrates a sufficient chain-of-custody as to the cocaine. See Rule 909.01,
Stats.[2] It is not fatal to the chain-of-custody to
not call one of the custodians of evidence submitted at trial. State v. McCarty, 47 Wis.2d
781, 788, 177 N.W.2d 819, 823 (1970).
In McCarty, as in this case, there was nothing to indicate
that the evidence was tampered with or altered. Evidence should not be suppressed if it is improbable that it was
altered. See United States
v. Aviles, 623 F.2d 1192, 1198 (7th Cir. 1980). Here, it is clear that the government took
reasonable precautions to preserve the evidence. It was still intact when the envelope was opened by the state
chemist. The trial court, therefore,
could have reasonably found that the evidence was in substantially the same condition
as it was when Jones was arrested. See
State v. Simmons, 57 Wis.2d 285, 295-296, 203 N.W.2d 887, 894
(1973) (government need only show that it took reasonable precautions to
preserve the original condition of the evidence). Jones, therefore, was not prejudiced by defense counsel's failure
to challenge the chain-of-custody because any such challenge would have
failed.
Finally, Jones contends
that he was denied the right to represent himself. See Faretta v. California, 422 U.S. 806
(1975). Based on the record summarized
below, we find that Jones did not request to proceed pro se. Because the right was not asserted, it was
not infringed.
Jones, on his
initiative, filed a motion to dismiss the charges against him before
trial. This prompted defense counsel to
seek withdrawal. During the hearing on
defense counsel's motion, Jones never asked to proceed pro se, he merely
complained about some of the work defense counsel had done on his case. When defense counsel later renewed her
motion, there was no statement from Jones that he wished to proceed on his own.
Unlike the right to
counsel, the Faretta right does not arise until asserted. Brown v. Wainwright, 665 F.2d
607, 610 (5th Cir. 1982). To properly
assert the right, the defendant must “clearly and unequivocally” request self‑representation. Faretta, 422 U.S. at 835. Jones never asked to defend himself.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.