COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 12, 1996 |
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No. 96-1141-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DALE STEINBACH,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Marathon County: RAYMOND F. THUMS, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Dale Steinbach appeals a judgment of
conviction and an order denying postconviction relief. On December 7, 1994, a jury convicted
Steinbach of first-degree intentional homicide, contrary to § 940.01(1), Stats., and carrying a concealed
weapon, contrary to § 941.23, Stats. On April 9, 1996, the court denied
Steinbach's motion for postconviction relief.
On appeal, Steinbach
argues that the trial court erred when it failed to poll the jurors after the
verdict and admitted his inculpatory statements. He also contends that he was denied effective assistance of
counsel, the prosecutor's remarks in closing argument constituted plain and
reversible error, and there was insufficient evidence to support the jury's
verdict. Because we are not persuaded
by Steinbach's arguments, we affirm the judgment and order.
On May 19, 1994, police
and firefighters were dispatched to the Steinbach farm because there had been
an explosion in a garage on the property.
The explosion occurred after Steinbach left a homemade air compressor running
in the garage.
Deputy Jeffrey Sheets
was the first to arrive on the scene.
He radioed to the dispatcher that there was no fire but that there was a
person (Steinbach) by the garage who refused to leave the area. Sheets told dispatch that he was retreating
to his squad as the man refused to leave the scene and was hooking up garden
hoses. Steinbach later explained that
he was attempting to remove his geese from the garage area. The dispatcher advised Sheets to go back and
remove Steinbach from the area for his own safety.
When firefighters
arrived, they observed Sheets engaged in a conversation with Steinbach just
south of the house and garage. As the
firefighters approached the garage, they heard two gunshots, and the
firefighter closest to the scene saw Sheets fall to the ground.
Shortly thereafter,
deputy David Rudie arrived and radioed for an ambulance and backup. Steinbach came down the driveway toward the
squad and motioned by waving his hand for Rudie to come into the house. Rudie told Steinbach to come to his squad,
but Steinbach returned instead to the area where Sheets lay.
When several other
officers and an ambulance arrived, Sheets was transported to the hospital with
wounds to his right forearm and head from bullets discharged from Steinbach's
.22 caliber Derringer. Sheets
subsequently died from the gunshot wound to his head.
The police handcuffed
Steinbach and escorted him to a nearby squad car. He waived his Miranda[1]
rights in the squad car. Steinbach made
inculpatory statements to the police as he was handcuffed, while he was seated
in the back seat of the squad, and at the police station. The court denied Steinbach's motion to
suppress the statements.
First, Steinbach asserts
that reversal is mandated because the court did not properly poll the jury when
it returned its verdict. Polling is the
procedure used to determine that the verdict is an accurate reflection of the
decision of each individual juror. State
v. Coulthard, 171 Wis.2d 573, 580-81, 492 N.W.2d 329, 333 (Ct. App.
1992). "A defendant has the right,
when timely asserted, to have the jurors individually polled on their
verdict." Id. at
581, 492 N.W.2d at 333.
The transcript clearly
indicates that the court polled the jurors after they returned guilty verdicts
of both counts.[2] In addition, Steinbach's trial counsel testified
at the postconviction hearing that had the jury not been polled upon their
return of the verdicts, he would have objected. We reject Steinbach's argument on this issue because the jury was
polled.
Next, Steinbach argues
that the court erroneously admitted his inculpatory statements to police. We are bound by the court's findings of
historical facts unless they are clearly erroneous. See State v. Kramar, 149 Wis.2d 767, 784,
440 N.W.2d 317, 324 (1989). The issue
of whether the police violated Steinbach's Miranda rights is a
constitutional fact which we decide independently of the trial court. See Kramar, 149 Wis.2d at 784,
440 N.W.2d at 324. We agree with the
court that Steinbach's statements were not obtained in violation of Miranda.
The Fifth Amendment to
the United States Constitution guarantees that no "person ... shall be
compelled in any criminal case to be a witness against himself." State v. Cunningham, 144
Wis.2d 272, 276, 423 N.W.2d 862, 863 (1988).
The Fourteenth Amendment requires the states to honor this
guarantee. Id.
Miranda v. Arizona, 384
U.S. 436 (1966), established that in order to use a suspect's statements
stemming from a custodial interrogation, the State must advise the suspect of
the Miranda warnings and adhere to various other procedural
safeguards to ensure the suspect's right against self-incrimination. Cunningham, 144 Wis.2d at 276,
423 N.W.2d at 863. If the suspect tells
the police that he wishes to remain silent, the interrogation must cease. Miranda, 384 U.S. at 474. If the suspect requests an attorney, the
interrogation must cease until an attorney is present. Id. As summarized by our Supreme Court, "an accused, having
expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by authorities until counsel has been made
available to the accused, unless the accused himself initiates further
communication, exchanges, or conversations with the police." Kramar, 149 Wis.2d at 785-86,
440 N.W.2d at 324 (citing Edwards v. Arizona, 451 U.S. 477,
484-85 (1981)).
The police handcuffed
Steinbach at the scene as he lay on the ground on his stomach. When Steinbach asked the officer why his
wrists were handcuffed behind his back, the officer responded, "You know
why. You know why you're handcuffed in
the back." Steinbach then stated,
"No, I don't. The son of a bitch
pulled a gun on me, so I shot him."[3] Steinbach contends that the officer's
comments constituted an interrogation before he had been read his Miranda
rights. We are not persuaded.
In Rhode Island v.
Innis, 446 U.S. 291, 301 (1980), the Court decided that
"interrogation" for Miranda purposes refers not only to
the direct questioning of a suspect in custody, but also to police conduct that
is the "functional equivalent" of direct questioning. Cunningham, 144 Wis.2d at 277,
423 N.W.2d at 864. The Innis
test is summarized as follows:
[I]f
an objective observer (with the same knowledge of the suspect as the police
officer) could, on the sole basis of hearing the officer's remarks or observing
the officer's conduct, conclude that the officer's conduct or words would be
likely to elicit an incriminating response, that is, could reasonably have had
the force of a question on the suspect, then the conduct or words constitute
interrogation.
Id. at
278-79, 423 N.W.2d at 864.
The officer's comment
was in response to Steinbach's question about the handcuffs. The officer's comment was not likely to
elicit an incriminating response from Steinbach, nor did it have the force of a
question put to Steinbach. Instead,
Steinbach voluntarily made the statement to the officer. We conclude that the officer's remark did
not constitute the "functional equivalent" of a custodial
interrogation, and that the statement was admissible.
While seated in the back
seat of the squad car, Steinbach was advised by detective Stephen Rust of his Miranda
rights. Steinbach said he understood
the rights, waived them, and agreed to talk with the officers. He described the events that led to the
shooting and stated that he shot Sheets twice in self-defense with a handgun
that had been concealed in his front right pants pocket. Steinbach accurately told the police where
he hid the handgun, and police retrieved it.
As he was led to the squad car, Steinbach contends that he shouted,
"Get me a good lawyer" loudly to his wife, and that this constituted
an invocation of his right to counsel.
Steinbach also testified that he told the police in the squad car that
he wanted an attorney. However, the
trial court determined that the testimony from three officers and from
Steinbach's wife that Steinbach did not make this request was more credible
than Steinbach's testimony. We defer to
the trial court because the determination of the credibility of the witnesses,
including the defendant's, is exclusively for the trier of fact. See In re Estate of Dejmal,
95 Wis.2d 141, 152, 289 N.W.2d 813, 818 (1980).
The officers transported
Steinbach to the police station, and he signed the waiver of rights form to
indicate that he understood his rights.
Steinbach refused to make a written statement without an attorney
present, but stated that he was willing to continue to talk with the officers
because they had "treated him so nice." Steinbach refused the officers' request to tape-record the
statement. Steinbach described and reenacted
the shooting, and again admitted that he shot Sheets.
Steinbach's decision to
make an oral statement, but not to give a written or taped statement, does not
undermine the constitutional validity of the oral statement or the
admissibility of the inculpatory statements he made during the subsequent oral
interview. See Connecticut
v. Barrett, 479 U.S. 523, 526-28 (1987). Steinbach was read his rights, he said he understood them, and he
waived them. On these facts, we
conclude that his statements were admissible.
Next, Steinbach asserts
that he was denied effective assistance of trial counsel. The two-part test for ineffective assistance
of counsel was set forth in Strickland v. Washington, 466 U.S.
668 (1984). Strickland's
first prong requires the defendant to show, against a "strong presumption
that counsel acted reasonably within professional norms," that trial
counsel's performance was deficient. State
v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). "This first test requires the defendant
to show that his counsel's performance was deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Id.
at 127, 449 N.W.2d at 847 (quoting Strickland, 466 U.S. at
687). An attorney's performance is not
deficient if it is reasonable under prevailing professional norms and
considering all the circumstances. Id.
at 129, 449 N.W.2d at 848.
Strickland's
second prong requires the defendant to prove that his right to a fair trial was
prejudiced. Id. at
687. "The defendant must show that
there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Johnson, 153 Wis.2d at 129,
449 N.W.2d at 848 (quoting Strickland, 466 U.S. at 694). "Even if deficient performance is
found, judgment will not be reversed unless the defendant proves that the
deficiency prejudiced his defense."
Id. at 127, 449 N.W.2d at 848.
The standard of review
of the performance and prejudice prongs of Strickland is a mixed
question of law and fact. Johnson,
153 Wis.2d at 127, 449 N.W.2d at 848.
The trial court's findings of fact as to these components will not be
overturned unless clearly erroneous. Id. The ultimate determination of whether the
conduct of an attorney constitutes ineffective assistance of counsel is a
question of law, reviewed de novo by this court. Id. We
apply the facts of this case to the performance prong of Strickland.
Steinbach contends that
his trial counsel's decisions not to object to the admission of several
videotapes and not to object to portions of detective Rust's testimony demonstrate
ineffective assistance of counsel. We
disagree. The State introduced
videotaped demonstrations by law enforcement officers showing how they are
trained to draw their weapons. At the
postconviction hearing, trial counsel testified that he did not object because
the videotapes supported the defense theory that things happened so quickly
that Steinbach did not have time to form the specific intent to kill Sheets.
The State also elicited
testimony from Rust regarding the inculpatory statement given by Steinbach in
the squad car. Rust testified about the
details of the statement, and also that his impression was that it was an
"afterthought" for Steinbach to say that he shot Sheets only after
Sheets had drawn his weapon. At the
postconviction hearing, counsel testified that although he could have objected
to the testimony, he chose not to because Steinbach's statement aided his
defense by portraying him as a "careful, deliberate, accurate reporter of
events."
In
both instances, trial counsel made a strategic decision not to object. "When counsel has made a strategic
choice in determining a course of action during a trial, we apply an even
greater degree of deference to counsel's exercise of judgment in considering
whether the challenged action constitutes ineffective representation." State v. Vinson, 183 Wis.2d 297,
307-08, 515 N.W.2d 314, 318-19 (Ct. App. 1994). Because counsel's strategic decision was reasonable, we conclude
that the failure to object was not deficient performance.
Additionally, Steinbach
asserts that counsel's presentation of the theory of self-defense constituted
ineffective assistance of counsel because it effectively eliminated the jury's
opportunity to find Steinbach guilty of a lesser included offense. It is the prerogative of trial counsel to
select a particular defense from a number of alternative defenses. State v. Hubanks, 173 Wis.2d
1, 28, 496 N.W.2d 96, 106 (Ct. App. 1992) (citing State v. Felton,
110 Wis.2d 485, 501-03, 329 N.W.2d 161, 169 (1983)). "Even if it appears, in hindsight, that another defense
would have been more effective, the strategic decision will be upheld as long
as it is founded on rationality of fact and law." Id. Additionally, as was noted in Strickland: "The reasonableness of counsel's actions
may be determined or substantially influenced by the defendant's own statements
or actions. Counsel's actions are
usually based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant." Id. at 691. At trial, Steinbach testified that he was
entitled to shoot Sheets in self-defense because Sheets drew his gun
first. We conclude, as did the trial
court, that it was reasonable for counsel to argue self-defense, especially in
light of Steinbach's testimony.
Next, Steinbach asserts
that counsel's failure to object to or move to strike portions of the
prosecutor's closing and rebuttal arguments demonstrates ineffective assistance
of counsel, and that the prosecutor's statements constitute plain and reversible
error. We disagree. In closing argument, a prosecutor may strike
"hard blows," but not "foul ones." State v. Neuser, 191 Wis.2d
131, 139, 528 N.W.2d 49, 52 (Ct. App. 1995).
Impermissible argument occurs when the prosecutor urges the jury to arrive
at its verdict after considering factors other than the evidence. Id. at 136, 528 N.W.2d at
51. "Closing argument is the
lawyer's opportunity to tell the trier of fact how the lawyer views the
evidence and is usually spoken extemporaneously and with some
emotion." State v. Draize,
88 Wis.2d 445, 455-56, 276 N.W.2d 784, 790 (1979).
The disputed portions of
the prosecutor's closing argument are the following:
A colleague of mine once told me that the
greatest glory in being a prosecutor is to be able to come into a court of
justice and to speak for those who cannot speak for themselves. My job is now done. But I don't get the last word, nor does
[defense trial counsel] who comes next, nor does the Judge. You have the final word in this case.
Your word comes through your verdict and
I asked that your verdict respond to those two shots that broke the silence of
that beautiful spring day out in Ringle on May 19, 1994. And I ask that your verdict respond to the
silence of death that this defendant visited upon Jeffrey Sheets.
....
Mr. Krueger suggests that because Dale
Steinbach tells the police a half hour after he shoots Deputy Sheets that it
was Deputy Sheets who initiated the situation, that that means that his story
is true. Let me tell you, based upon
working in the criminal justice system for a decade, people come up with
stories faster than that. And I can
assure you that it doesn't take a lot of time in a situation such as this for
someone to blame the other person.
It
doesn't take them a lot of time to say that that person went first. Most homicides that go to trial find the
defendant saying something just like that.
You see, ladies and gentlemen, it is very easy to blame someone who
cannot stand up and defend themselves.
It is easy to say that it was their fault and they went first. It happens all the time.
Steinbach also directs
our attention to the prosecutor's rebuttal argument:
I
have responded to some of the points that Mr. Krueger brought up during his
closing, but the final thing I want to touch upon is something that Mr. Krueger
never mentioned. Something that I
started my opening statement with and I think he never mentioned it because the
defense has no answer to it. Why didn't
Deputy Sheets [ever] fire his gun if the events unfolded out in that plowed
field as this defendant told you they did?
And they provide no explanation because there is no explanation.
Trial counsel testified
at the postconviction hearing that although he could have objected to the
prosecutor's closing remarks, he did not object because the remarks neither
hurt nor harmed Steinbach. He also
testified that he did not object to the rebuttal because the prosecutor
referred to evidence in the record that he had rebutted in his closing
argument. The prosecutor may question
the validity of the position taken by the defense in order to highlight its
weaknesses. See State v.
Camacho, 176 Wis.2d 860, 886, 501 N.W.2d 380, 390 (1993); State
v. Patino, 177 Wis.2d 348, 379-80, 502 N.W.2d 601, 613-14 (Ct. App.
1993).
We agree with Steinbach
that a small portion of the prosecutor's rebuttal argument was improper because
it reflected the personal opinions of the prosecutor, and trial counsel should
have objected. When the prosecutor
stated, "Let me tell you, based upon working in the criminal justice
system for a decade, people come up with stories faster than that," he
testified before the jury as an unsworn witness. See United States v. DiLoreto, 888 F.2d 996
(3d Cir. 1989). However, when we
consider this remark in the context of the entire trial, we conclude that it
did not affect the fairness of the trial.
See Neuser, 191 Wis.2d at 136, 528 N.W.2d at 51. Therefore, counsel's failure to object did
not result in prejudice for purposes of Steinbach's claim of ineffective
assistance of counsel.
Next, Steinbach argues
that the prosecutor's remarks in closing and during rebuttal constituted plain
and reversible error. As noted above,
Steinbach did not object to any of these remarks. The failure to object or to move for a mistrial in the trial
court generally waives the issue for appeal purposes. State v. Goodrum, 152 Wis.2d 540, 549, 449 N.W.2d
41, 46 (Ct. App. 1989). We therefore
need not address this argument. Even if
we were to consider the merits of the argument, we would conclude, similarly to
our discussion, supra, that the comments did not prejudice Steinbach's
right to a fair trial. See Neuser,
191 Wis.2d at 137, 140, 528 N.W.2d at 51, 53.
Finally, Steinbach
claims that there was insufficient evidence to support the verdict. Our review of this issue is limited as
follows: "[A]n appellate court may not reverse a conviction unless the
evidence, viewed most favorably to the state and the conviction, is so
insufficient in probative value and force that it can be said as a matter of
law that no trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt." State v.
Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990).
In this case, firefighters
testified that they heard two shots and saw Sheets fall to the ground. Police officers testified that Steinbach
admitted to them at the scene, in the squad, and at the police station that he
shot Sheets with the .22 Derringer he carried in his pants pocket. The forensic pathologist who conducted the
autopsy testified that the .22 caliber bullet wound to Sheets's head took his
life. Crime lab evidence demonstrated
that the bullets had been discharged from Steinbach's .22 Derringer. Steinbach took the stand and testified that
he shot Sheets in self-defense.
The State presented
sufficient evidence to prove Steinbach's guilt beyond a reasonable doubt. The jury could reasonably infer specific
intent from Steinbach's conduct. See
State v. Webster, 196 Wis.2d 308, 322, 538 N.W.2d 810, 815 (Ct. App.
1995). We therefore reject Steinbach's
argument and affirm the conviction.
Steinbach has failed to
persuade us that the trial court erred, Steinbach received ineffective
assistance of counsel, the prosecutor's error in closing argument prejudiced
Steinbach and there was insufficient evidence to support the verdict. We affirm the judgment and order of the
court.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.
[2]
The polling dialog occurred as follows:
[THE COURT:] It is my job now to
poll the jury to make sure that what you did is unanimous, that all of you
agree, and I will not call you by name.
I will just, as I go down the row here, Mr. DeValk, you are the
foreman. Did all of you agree?
THE FOREPERSON: Yes.
THE COURT: Did you agree?
A JUROR: Yes.
THE COURT: Did you agree?
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
A JUROR: Yes.
THE COURT: Okay.
Anything further?
MR. GRAU: Well, Judge, I would just like the record to
reflect that the Court did inquire of each and every juror and each did reply
yes to the Court's question.
THE COURT: I didn't ask you. I read both verdicts. I
would assume that everybody was going to tell me that you all agree on both
verdicts as presented. Is that correct?
JUROR: Yes.
THE COURT: Anybody have any disagreement with
that? (No response). Anything further?
MR. GRAU: Not from the State, Your Honor.
MR. KRUEGER: Not from the defense, Judge.
THE COURT: The jury is excused ....