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COURT OF APPEALS DECISION DATED AND FILED February 28, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Jeffrey L. Ware,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Dykman, Lundsten and Bridge, JJ.
¶1 PER CURIAM. Jeffrey Ware appeals a judgment convicting him on two burglary counts. He also appeals an order denying his motion for postconviction relief. Ware’s conviction followed a jury trial. He raises issues concerning an evidentiary ruling during trial, trial counsel’s performance at trial, Ware’s constitutional right to a speedy trial, and sentence credit. We conclude that Ware is entitled to additional sentence credit, but otherwise affirm.
BACKGROUND
¶2 In January 2003, the State charged Ware with three counts of
burglary. Ware made his initial
appearance on March 3, 2003. On March
12, 2003, Ware failed to appear for his preliminary hearing, and the court
issued a bench warrant for his arrest. Later
in March, Ware was arrested in
¶3 At his preliminary hearing on December 23, 2004, Ware demanded a speedy trial. In February 2005, he withdrew his speedy trial demand. Ware then filed a motion to dismiss based on constitutional speedy trial grounds and, in April 2005, the circuit court denied his motion. Ware’s trial occurred on April 27, 2005.
¶4 The State tried Ware on allegations that he and Mallory Thome burglarized rooms in a co-op. Thome was also charged in the burglaries, and negotiated a plea agreement that included her promise to testify against Ware.
¶5 At trial, Thome testified that the two entered the co-op, burglarized several rooms, and carried the stolen items out to Ware’s van. Thome also testified that Ware stole a guitar during the burglary. Thome said she subsequently left when a resident caught her taking things from his room. She and Ware then escaped in Ware’s van.
¶6 Kenneth Horn, a resident of the co-op, testified at trial that he caught Thome in the act of burglarizing his room. Horn testified that after Thome left the co-op he followed her for a couple of blocks, and he then returned to the co-op. At that point, Horn spoke to another resident of the co-op, Daniel Hooper, who told of seeing a black male in the co-op carrying things through a hall, including a guitar case. Hooper was reportedly out of the country at the time of trial and did not testify. The circuit court allowed Horn to testify to Hooper’s statement under the present sense impression exception to the hearsay rule. See Wis. Stat. § 908.03(1) (2005-06).[1] The statement was inculpatory because Ware is a black male, and Hooper’s statement inferentially supported Thome’s testimony that Ware participated in the burglary and had taken a guitar.
¶7 Ware testified that he remained in the van while Thome entered the co-op, and he was not aware that she intended to commit burglaries while she was there.
¶8 In postconviction proceedings, Ware alleged that counsel
provided ineffective representation.
Counsel’s alleged omissions included his failure to: (1) object on confrontation grounds to
Horn’s testimony about Hooper’s statement; (2) request
¶9 Ware also moved for sentence credit for the time he spent in
the Cook
HOOPER’S STATEMENT
¶10 An out-of-court statement is inadmissible under U.S. Const. amend. VI and Wis. Const. art. I, § 7, if it is
“testimonial” in nature, the declarant is unavailable, and the defendant has
had no prior opportunity to cross-examine the declarant. State v. Jensen, 2007 WI 26, ¶15, 299
¶11 Ware first contends that Hooper’s statement to Horn was
testimonial, and thus inadmissible, because Ware never had the chance to
cross-examine Hooper before Hooper became unavailable, and there was reason to
believe that Hooper’s statement would be used at trial. See
State
v. Manuel, 2005 WI 75, ¶37, 281
¶12 Alternatively, Ware argues that, even if Hooper’s statement was
not testimonial, it was inadmissible under the confrontation clause because it did
not fit a firmly rooted hearsay exception, and did not bear particularized
guarantees of trustworthiness. An
out-of-court statement of a non-testifying witness is admissible if the witness
is unavailable and the statement bears particularized guarantees of
trustworthiness. Roberts, 448
¶13 Here, there is no serious dispute regarding Hooper’s unavailability. Furthermore, we conclude that Hooper’s statement contained sufficient guarantees of trustworthiness. Hooper told Horn that he saw a black male with a guitar case, but provided no further description. Although Horn gave no precise time estimate, it is clear that Hooper made his statement within minutes of the event he described. It was very shortly after Horn discovered Thome in his room and followed her out of the co-op, and it is reasonable to assume that Ware and Thome had not been in the co-op, burglarizing it, over an extended period of time. Additionally, Hooper had no apparent reason to lie about what he saw, and there was no reason to infer that he was mistaken in what he saw. He relayed a very simple piece of information that was, on its face, neutral. Only when later coupled with Thome’s testimony was his statement inculpatory. Cross-examination of Hooper would have been marginally useful, at best.
TRIAL COUNSEL’S PERFORMANCE
¶14 To establish ineffective assistance, the defendant must show
that trial counsel’s representation was deficient and that the deficiency
prejudiced him.
¶15 Ware first argues that counsel did not properly preserve his confrontation clause challenge to the use of Hooper’s statement. For the reasons explained in the previous section of this opinion, a confrontation clause challenge would not have succeeded. Consequently, counsel’s omission was neither deficient nor prejudicial.
¶16 Ware next argues that counsel negligently failed to request
¶17 The jury heard the following testimony about Thome: she had multiple criminal convictions; abused drugs and alcohol; she was under the influence of drugs when she and Ware committed the burglaries; she gave police inconsistent versions of the burglary and, at one point, told police that she was so drugged she could not remember what happened. The jury also heard that, although Ware was thirty-five-years old, Thome initially described him as a teenager; she considered Ware her lover; she was upset that he had jilted her after her arrest; and she had once lived in the burglarized co-op, but was kicked out for theft. Additionally, counsel read Thome’s plea agreement to the jury, including the prosecutor’s unequivocal declaration that Thome received sentencing and charging concessions partly in exchange for her testimony against Ware. However, when asked to confirm that she received concessions for testifying, Thome both flatly denied that she had and answered evasively. Defense counsel extensively reviewed the problematic nature of Thome’s testimony in his closing argument. In summary, he described Thome as an “unreliable witness who was paid for, who has got a history of lying, who was making a deal to get herself out of trouble.” In short, the jury was fully informed as to why Thome’s testimony might be unreliable. It defies common sense to suspect that the jury did not understand the need to consider Thome’s testimony with great care. Therefore, Ware has not shown a reasonable probability of a different result had the court given the accomplice instruction.
¶18 Finally, Ware argues that counsel negligently failed to present evidence impeaching Thome’s credibility, despite promising to do so in his opening argument. Counsel promised testimony that Thome told lies in three specific instances unrelated to the co-op burglary or her relationship with Ware. By his own account, counsel forgot to introduce that testimony. Again, the circuit court found his omission deficient, but not prejudicial. We agree with the circuit court that Ware has not shown prejudice. As the circuit court noted, and as we have recounted above, Thome’s questionable reliability and credibility was sufficiently established during her own testimony. Thome admitted to multiple lies directly related to this case, and counsel effectively presented the jury with plausible motives Thome may have had to falsely implicate Ware. Further evidence that she had been untruthful in the past would have been cumulative.
SPEEDY TRIAL
¶19 To determine whether a defendant’s constitutional right to a speedy
trial has been violated, we consider a four-part balancing test: (1) the length of the delay; (2) the reason
for the delay; (3) whether the defendant asserted his right to a speedy trial;
and (4) whether the defendant was prejudiced by the delay. Barker v. Wingo, 407
¶20 Ware contends that at least fourteen months of the delay should be attributed to the State’s negligence rather than to his absconding. Even if we accepted that contention, Ware’s claim fails on the remaining prongs of the speedy trial test.
¶21 The reason for the delay does not weigh heavily against the
State. Assuming the State was guilty of
negligence, negligent delay weighs less heavily than intentional delay. Hipp v. State, 75
¶22 The third prong, assertion of his right to a speedy trial,
weighs against Ware because he did not demand a speedy trial until he returned
to
¶23 Finally, Ware failed to demonstrate that the delay actually prejudiced his defense.
¶24 Ware contends that we should assume the delay caused him anxiety and concern. But Ware himself explains that this assumption leads only to minimal prejudice. Ware also contends that, by the time he came to trial, potentially exculpatory witnesses could no longer recall events that occurred near the time of the burglary in November 2002. However, Ware fails to explain why he could not have contacted the witnesses between the time he was charged, in January 2003, and the time he absconded, in March 2003, when the witnesses presumably had a better memory of events. If the witnesses were lost to him, he must bear the blame.
¶25 Furthermore, Ware’s recitation of evidence indicating that he made legitimate purchases totaling $300 just before the charged burglary is undeveloped. Ware asserts that “log notes” of agents supervising Ware showed the purchases, but that he could not present the evidence because the agents involved had no independent recollection because of the delayed trial. But Ware does not explain why the “log notes” could not have been used to refresh the agents’ memories, or been admissible themselves if the agents could not recall. Ware asserts that the log notes are not detailed enough to be helpful. But, if that is true, then Ware is purely speculating as to what the agents would have said if interviewed sooner. And, it is difficult to see how purchases exculpate Ware. Obviously, burglars often use ill-gotten proceeds to make retail purchases. The supposedly lost evidence did not show that Ware had a legitimate source of income.
¶26 In sum, under these circumstances Ware has not established a constitutional deprivation of his right to a speedy trial.
SENTENCE CREDIT
¶27 A sentenced defendant receives credit for all days spent in
custody in connection with the course of conduct for which sentence was imposed. Wis.
Stat. § 973.155(1)(a). We
independently determine whether the defendant should receive sentence
credit.
¶28 The dispositive question here is whether Ware would have been
held in the Cook County Jail between June 27, 2003, and May 19, 2004, even if
he had not been a fugitive in this case.
By the Court.—Judgment and order affirmed in part; reversed in part and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.