COURT OF APPEALS DECISION DATED AND RELEASED October 1, 1996 |
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. 96-0974-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Keith L. Allen,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. After a jury trial, Keith L. Allen was
convicted of armed robbery, in violation of § 943.32(1)(b) and (2), Stats.
The trial court sentenced Allen to forty years in prison. Pursuant to § 973.0135(2)(b), Stats., the court set parole
eligibility at two-thirds of the sentence imposed and ordered Allen to pay
restitution up to twenty-five percent of his prison earnings account. Allen was granted 242 days of credit for
presentence incarceration.
The state public
defender appointed Donna L. Hintze to represent Allen on appeal. Attorney Hintze has filed a no merit report
pursuant to Rule 809.32, Stats., and Anders v.
California, 386 U.S. 738 (1967).
Allen received a copy of the no merit report and was advised of his
right to file a response. He has filed
a response.
According to the
testimony, Allen robbed Arno Tellier when Tellier and his wife returned home
from grocery shopping. Allen demanded
Tellier's wallet and attempted to remove it from Tellier's pocket. At first unsuccessful, Allen apparently cut
or tore Tellier's pocket to obtain the wallet.
As Tellier got out of the car, he lost his balance and fell against
Allen. Before Allen ran from the
garage, Tellier removed one of Allen's shoes and threw it out of reach. Kathie Rolando, the daughter of Tellier's neighbor,
saw Allen run from the garage to a waiting car. While fleeing, Allen backed the car into a tree. Rolando provided the car's license number to
investigators who traced it to Bryon Dixon.
Dixon loaned the car to Allen on the morning of the robbery. After the robber left the garage, Tellier's
wife told Tellier that Allen had had a knife and that he had threatened her
with it.
The no merit report
addresses whether the evidence was sufficient to prove guilt beyond a
reasonable doubt, whether the trial court erroneously exercised its discretion
when it denied Allen's requests for new counsel on the day of trial and for a
mistrial or continuance when Rolando identified Allen in court, and whether
Tellier's testimony concerning his wife's statements after the robbery violated
Allen's confrontation rights. The no
merit report also addresses whether the trial court erroneously exercised its
discretion when it imposed the maximum sentence and set parole eligibility at
two-thirds of the sentence. Allen also
raises these issues in his response.
Hintze concludes that these possible issues have no arguable merit. Based upon our independent review of the
record, we conclude that her analysis of each of the issues is correct;
however, we address Allen's specific concerns.
Allen does not contend
that a robbery did not occur; rather, he challenges the conclusion that he was
the robber. He complains about numerous
discrepancies in the evidence or testimony.
For example, he complains that Dixon was not asked to try on the
robber's shoe or to provide alibi witnesses.
Also, Allen's fingerprints were not found in Dixon's car, but no one
testified that the robber wore gloves.
Apparently, there was also a discrepancy regarding facial hair.
Allen ignores our
standard of review when reviewing evidence to sustain a conviction. An appellate court does not require that all
of the pieces of the case fit together perfectly. Rather, a reviewing court considers the evidence in the light
most favorable to the jury's verdict to determine if a jury, acting reasonably,
could be convinced, beyond a reasonable doubt, by evidence the jurors had a
right to believe and accept as true. State v.
Barksdale, 160 Wis.2d 284, 289-90, 466 N.W.2d 198, 200 (Ct. App.
1991). Under this standard, there was
sufficient evidence to support the jury's finding.
Allen alleges that his
request for new counsel should have been granted because a conflict of interest
existed between himself and trial counsel.
As evidence of the conflict, Allen cites counsel's plea negotiations,
his failure to advise Allen concerning adjournments, his belief that Allen was
guilty, and his refusal to file motions to suppress evidence and to
dismiss. A suppression motion would
have been frivolous because the evidence at trial did not result from
statements Allen made or from a search of his person or property. A motion to dismiss was inappropriate
because the trial was held within the time limits of the speedy trial
demand. Additionally, trial counsel
represented that he was prepared for trial and that the differences between
himself and Allen were not irreconcilable.
The record reflects that trial counsel vigorously defended Allen and was
sensitive to Allen's desire to have input into trial decisions. Nothing suggests that the conflict was so
great that, during trial, it likely resulted in a total lack of communication,
prevented an adequate defense, or frustrated a fair presentation of the
case. See State v.
Lomax, 146 Wis.2d 356, 359, 432 N.W.2d 89, 90 (1988).
Allen moved for a
mistrial or a continuance when Rolando identified him as the man she saw
flee. On the day she testified, Rolando
advised the prosecutor that she could identify Allen. The discovery materials did not indicate that she could make an
identification, and she had not done so at a parole revocation hearing. The trial court rejected the motion for a
mistrial after determining that no information known to the prosecution before
trial had been withheld during discovery.
The trial court also
rejected Allen's request for a continuance to obtain a transcript of the parole
hearing. Allen argued Rolando had
testified then that she could not identify Allen, and Rolando claimed that she
had not been asked to do so. To support
his claim that the trial court should have granted the continuance, Allen
included a copy of the transcript from the hearing. Ordinarily, we do not consider items not in the appellate
record. See Jenkins v.
Sabourin, 104 Wis.2d 309, 313, 311 N.W.2d 600, 603 (1981). We note, however, that the transcript shows
that Rolando testified truthfully when she testified that she was not asked at
the hearing if she could identify the robber.
The transcript shows the following exchange:
Agent Prock:"Did you see
the attacker?"
Rolando: "He was a black
male, tall, thin, wearing dark clothes and a white sock."
Agent Prock:"And did
you identify him?" (emphasis added).
Rolando:"As
a black male. Tall black male."
The
question asked whether, in the past, Rolando identified the robber. The questioner did not ask if she could
identify him at the time of the hearing.
A transcript would not have allowed Allen to impeach Rolando's
identification.
Allen's confrontation
claim is premised on Tellier's testimony that, immediately after the robbery,
his wife said that the robber had had a knife and had threatened her with
it. The trial court ruled that Mrs.
Tellier's statements were excited utterances, which are admissible even if she
were available to testify. See
§ 908.03(2), Stats. Prior to trial, Mrs. Tellier broke her ankle
and her hip, and she did not testify.
Allen contends that because Mrs. Tellier traveled to doctor's
appointments, she was sufficiently ambulatory to appear and testify; and thus,
she was available. When testimony is
within a well-recognized exception to the ban on hearsay statements, however, the
Confrontation Clause does not require that the State show the declarant is
unavailable. White v.
Illinois, 502 U.S. 346, 354-56 (1992).
Consequently, even if Mrs. Tellier was an available witness, Allen's
confrontation claim lacks merit.
Allen objects to
statements made by the prosecutor during the sentencing hearing. The prosecutor regretted that he did not
file two counts of armed robbery. He
also stated that Allen stalked the victims and suggested that Allen may have
been responsible for a series of similar crimes. While due process requires that a defendant be sentenced on the
basis of true and correct information, State ex rel. LeFebre v.
Israel, 109 Wis.2d 337, 345, 325 N.W.2d 899, 903 (1982), a defendant
has the burden of proving by clear and convincing evidence that the challenged
statements were inaccurate and that he was prejudiced by the error. State v. Littrup, 164
Wis.2d 120, 132, 473 N.W.2d 164, 168 (Ct. App. 1991). Allen has not shown prejudice.
Whether or not a second armed robbery count would have been appropriate,
Mrs. Tellier was the victim of some crime when Allen intimidated her with a
knife, and the trial court could properly consider this fact. Regarding the series of robberies, the trial
court's comments during sentencing do not indicate that it considered this
allegation when imposing sentence.
The trial court set
Allen's parole eligibility date pursuant to § 973.0135(2)(b), Stats.
Allen argues that the validity of the statute should be challenged;
however, a challenge has been foreclosed by State v. Borrell,
167 Wis.2d 749, 482 N.W.2d 883 (1992).
In Borrell, the court upheld a statute allowing courts to
set a parole eligibility date for a life sentence, holding that the date was an
integral part of the sentencing decision.
Id., at 778, 781, 482 N.W.2d at 894, 895. Borrell's rational applies
equally to § 973.0135.
In addition to the
issues raised by Hintze, Allen objects to statements made by the prosecutor
during closing arguments. The closing
arguments were not reported, and assertions of fact not a part of the record
cannot be considered. Jenkins,
104 Wis.2d at 313, 311 N.W.2d at 603.
Allen also claims
ineffective assistance of counsel. The
allegedly deficient performance included counsel's plea negotiations and the
trial court's awareness of them, his agreement that voir dire, opening
statements, and closing arguments would not be reported, his failure to have
the transcript of the parole hearing available at trial, his lack of
preparation for trial, and his failure to object to unreliable and irrelevant
statements during sentencing.
To establish a claim of
ineffective assistance of counsel, a defendant must show that trial counsel's
performance was deficient and prejudicial.
State v. Brooks, 124 Wis.2d 349, 352, 369 N.W.2d 183,
184 (Ct. App. 1985). Prejudice exists
if "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Strickland v.
Washington, 466 U.S. 668, 694 (1984).
Allen cannot show
prejudice. He admits that a robbery
occurred. The evidence showed the
robber had a weapon. Allen's identity
as the robber was established both by eyewitness testimony and by
circumstantial evidence. The record
does not provide any basis for arguing that the trial court was not fair or
that counsel was not prepared. Allen's
allegation that trial counsel was not prepared resulted from Rolando's surprise
identification; however, a transcript from the parole revocation hearing would
have bolstered, not impeached, Rolando's credibility. Because of the evidence against Allen, the prosecutor's alleged
comments during closing arguments, if objectionable, were harmless. State v. Dyess, 124
Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985) (error is harmless if no
reasonable possibility error contributed to result). Finally, the comments at sentencing were relevant because Allen's
background and character are relevant factors, and Allen has not shown that the
comments were unreliable.
Our independent review
of the record did not disclose any additional potential issues for appeal. Therefore, any further proceedings on
Allen's behalf would be frivolous and without arguable merit within the meaning
of Anders and Rule 809.32(1),
Stats. Accordingly, the judgment of conviction is affirmed, and Hintze
is relieved of any further representation of Allen on this appeal.
By the Court.—Judgment
affirmed.