COURT OF APPEALS DECISION DATED AND FILED March 18, 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 I |
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State of Plaintiff-Respondent, v. Adonis R. Grady, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 CURLEY, P.J. Adonis R. Grady appeals the judgment convicting him of felony murder, contrary to Wis. Stat. § 940.03 (2001‑02),[1] and the order denying his postconviction motion. Grady contends that: (1) both of his trial attorneys were ineffective and he was entitled to a Machner hearing[2] concerning his allegations; (2) the trial court erroneously exercised its discretion in limiting cross-examination concerning the conditions under which Grady and Ryan Davis, one of Grady’s accomplices, gave their statements to police and in refusing to permit the introduction of evidence of Grady’s rejection of an offer of immunity; (3) newly discovered evidence requires a new trial; and (4) a new trial should be granted in the interest of justice. We disagree and affirm.
I. Background.
¶2 A petition dated July 9, 2003, was filed in Children’s Court alleging that Grady was delinquent for, inter alia, his part in the robbery of Joseph Peter that resulted in the shooting death of Peter. Grady was, at the time, several weeks shy of his sixteenth birthday. Several months later, Grady was waived into adult court and charged with felony murder.
¶3 The underlying facts are that on July 1, 2003, Grady, along
with two others, Davis, and a man known only as “Reese,” decided to rob the
drug dealer who Grady had purchased marijuana from earlier in the evening. The plan was for Grady to remain in the van
while the other two, armed with a gun supplied by Grady, went in and took money
that Grady had seen on a table in the drug dealer’s house. Grady pointed out the apartment where the
drug dealer lived from about a block away.
The other two men walked up to what they believed was the drug dealer’s
house and rang the doorbell. It was
later learned that this was the wrong apartment. Shortly after the doorbell had been rung,
Barbara Davison, Peter’s girlfriend, opened the door to leave for work and
encountered
¶4 After Grady was arrested and advised of his Miranda rights,[3] he gave two statements to the police. Grady was told during one of the interrogations that, contrary to what he claimed, his mother did not support his alibi that he was home in the basement in bed on the night of the murder. In one of his later statements, he admitted driving Davis and another man to Peter’s apartment, but claimed not to know what the two of them were going to do.
¶5 His attorney filed a motion to suppress his statements given to the police. His attorney also filed a notice of alibi, stating that Grady’s mother and another would say he was elsewhere at the time of the murder. Shortly before trial, Grady changed lawyers. His new lawyer informed the court that he planned on calling Grady’s grandfather to testify that Grady had been offered immunity in exchange for testifying against his co-actors, and that Grady told his grandfather that he could not accept the proposal because he was not involved in the robbery/murder. The trial court ruled this testimony inadmissible.
¶6 At Grady’s jury trial,
II. Analysis.
A. Neither of Grady’s attorneys were
ineffective.
¶7 Grady claims that both his trial attorneys were
ineffective. He submits that his first
attorney, Michael Backes, was ineffective in litigating the motion to suppress
his statements given to police, for failing to investigate, and for failing to
file a discovery demand. He faults both Attorney
Backes and his second attorney, John Schiro, for failing to move to suppress
the statement of
¶8 To demonstrate ineffective assistance, the defendant must
show that counsel’s performance was deficient, and that this deficient
performance prejudiced the defense. Strickland
v.
¶9 To establish prejudice, the defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland,
466
¶10 With respect to Grady’s claim that he was entitled to a Machner
hearing on his claims, we review an order of the trial court denying a request
for an evidentiary hearing using a two-part test. State v. Bentley, 201
If the motion on its face alleges facts which would entitle the defendant to relief, the [trial] court has no discretion and must hold an evidentiary hearing. Whether a motion alleges facts which, if true, would entitle a defendant to relief is a question of law that we review de novo.
¶11 Grady’s first claim is that Attorney Backes was ineffective in litigating the motion to suppress his statements given to police because his attorney failed to present expert witnesses who could have testified to his low intellectual levels and his emotional and learning deficits. Grady also faults his attorney for failing to call Grady as a witness at the pretrial hearing. Grady submitted numerous documents and reports with his postconviction motion. Included were psychological reports suggesting that Grady was mildly mentally retarded and had emotional and learning disabilities. He also presented an affidavit from his mother indicating that she supported Grady’s contention that he was at home the morning of the murder, and thus, the police lied to him. Grady insists that his statements were coerced by the police. He contends that the combination of his low IQ, his psychological problems, his learning disabilities, his youth, and improper police tactics, like lying about his mother’s statements, rendered his statement involuntary and his attorney’s failure to introduce this evidence constituted ineffective assistance of counsel.
¶12 “Whether or not a confession is voluntary and not the result of
coercion depends upon the ‘totality of the circumstances.’ The test is whether ‘the totality of the
circumstances that preceded the confession[] … goes beyond the allowable
limits.’” State v. Wallace, 59
¶13 Case law has held that low intellectual levels and learning
disabilities do not automatically require a finding of involuntariness. See
The Court’s findings of fact and mixed findings of fact and conclusions of law at the February 20, 2004 [Miranda-Goodchild hearing][4] took into account the defendant’s personal characteristics. The Court was aware that the defendant was 15 years of age at the time of the interview. The interviewing detective determined that the defendant was not undergoing any psychological or psychiatric care. While the defendant did not say that he had a mental health history, he did say he had emotional and learning disabilities, and the Court was aware of this. The second interviewing detective also became aware of these educational difficulties or learning disabilities through the defendant. While the Court was aware that the defendant suffered from emotional and learning disability issues, the interviewing detective followed up on these issues, and there were no facts found at the Miranda-Goodchild hearing that these issues affected the manner in which the defendant gave his statements to the detectives. Further, the defendant had been arrested previously, and had experience with law enforcement officers.
The defendant’s argument therefore is one of degree: the emotional and learning difficulties were brought out in the interviews, testified to at the evidentiary hearing, and considered by the Court in its voluntariness determination, but just not in the dispositive way the defendant now seeks.
(Record citations and underlining omitted; footnote added.) We agree with the trial court. Grady’s attorney was not ineffective for failing to call expert witnesses to testify to facts already known to both the police and the court. Moreover, while Grady’s mother recanted her earlier statement to police that she could not say when Grady came home, a police report of an interview with her supports the fact that earlier Grady’s mother could not substantiate Grady’s contention that he was home. Thus, the police were not deceitful, as Grady claims.
¶14 Grady also faults Attorney Backes for failing to call him as a
witness because he would have testified that during his interrogation his
request to call his mother was denied, and he was told he could go home if he
gave a statement to the police. His attorney
explained in his affidavit that he did not call Grady as a witness because he
feared Grady would not win any credibility contests with the police, and he
could have been impeached later by whatever testimony he gave at the
hearing. There is “‘a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
[legal] assistance,’” which could be considered sound trial strategy. State v. Ambuehl, 145
¶15 Grady also complains that Attorney Backes’s failure to file a
formal discovery request with the State, failure to review the court file of
Davis, and failure to call an expert witness concerning false confessions,
constituted ineffectiveness. Case law
supports Grady’s claim that a failure to review all discovery in a felony case
is deficient performance.
¶16 Grady also criticizes Attorney Schiro, who did review
¶17 Grady also argues that both Attorneys Backes and Schiro were
ineffective for failing to suppress
¶18 Finally, Grady submits that Attorney Schiro was ineffective
because he failed to impeach Davis concerning the location of the house of
Jason Haman, a friend of Davis’s, and because he never had a Polaroid picture
of Davis with a black cast admitted into evidence.
¶19 With respect to Grady’s contention that Attorney Schiro engaged
in deficient performance for not admitting a picture of
¶20 First, discrepancies between witnesses’ observations are
normal. Second,
¶21 Finally, given our conclusions regarding the alleged ineffectiveness of both lawyers, we adopt the trial court’s belief that a Machner hearing was not warranted.
While the defendant’s motion combs through the evidence and arguments and points out strategic choices with which the defendant now disagrees, and offers arguments he now wishes would have been made, this exercise is done with the great benefit of hindsight. This is not the lens through which to view the defendant’s former attorneys’ advocacy. Their advocacy did not so undermine the proper functioning of the adversarial process that the trial in this case cannot be relied on as having produced a just result.
B. There is no newly discovered
evidence that requires a new trial.
¶22 Grady next argues, in the alternative, that if we are
unconvinced that his trial attorneys were ineffective, then he is entitled to a
new trial on the basis of newly discovered evidence. He insists that the discovery of
¶23 We review a trial court’s determination as to whether a
defendant has established his or her right to a new trial based on newly
discovered evidence for an erroneous exercise of discretion.
¶24 To obtain a new trial based on newly discovered evidence, a
defendant must establish by clear and convincing evidence that “‘(1) the
evidence was discovered after conviction; (2) the defendant was not negligent
in seeking evidence; (3) the evidence is material to an issue in the case; and
(4) the evidence is not merely cumulative.’” State v. Armstrong, 2005 WI 119,
¶161, 283
¶25 The trial court refused to grant a new trial based on what
Grady contends is newly discovered evidence.
Our review of the record does not support Grady’s assertion that the
medical records of Davis, and his purported letter sent to a judge in which he
declares his innocence, meet the definition of newly discovered evidence because
the evidence was readily available before the trial. We also agree with the trial court that the
affidavits of the lay witnesses do not constitute new evidence. Most of these witnesses had been interviewed
by the police before the trial; thus, their statements could have been obtained
by Grady before trial. Additionally,
their postconviction affidavits, while suggesting that
C. The trial court properly
exercised its discretion during trial.
¶26 Grady next focuses on the trial court’s evidentiary rulings shortly before and during the trial. He argues that the trial court erroneously exercised its discretion when it limited cross-examination of the police witnesses who interrogated Grady and Davis and when it refused to permit the testimony of Grady’s grandfather, who would have recounted a conversation he had with Grady concerning the State’s earlier offer of transactional immunity. Allegedly the grandfather would have testified that Grady told him he could not accept the offer because he was not involved in the robbery and murder.
¶27 Wisconsin Stat. § 906.11(1)
empowers the trial court to control the presentation of witnesses as long as
that control is exercised “reasonabl[y,]” the truth is sought to be
ascertained, time is not wasted, and the witnesses are protected “from
harassment.”
¶28 We first observe that Grady overstates the limitations placed
on his attorney’s cross-examination of the officer involved in the
interrogations of Grady and
¶29 After reviewing the transcript, we are satisfied that the trial
court allowed Attorney Schiro a meaningful cross-examination of the officer and
properly exercised its discretion in sustaining some of Attorney Schiro’s
questions. Attorney Schiro was also able
to question
¶30 Grady is also critical of the trial court’s refusal to have Grady’s grandfather testify about Grady’s rejection of transactional immunity on the grounds that he could not accept the proposal because he was innocent. Grady asserts that an accused’s refusal to negotiate because of his or her claimed innocence is strong proof of innocence. The trial court denied the request, ruling that the danger of confusing the jury was outweighed by the testimony’s relevance, and that pursuant to Wis. Stat. § 904.08, evidence of negotiations is not admissible. We agree, but for different reasons.
¶31 While a defendant’s “consciousness of innocence” state-of-mind
(offer to take a polygraph, offer to undergo DNA testing, etc.) can be
material, State v. Santana-Lopez, 2000 WI App 122, ¶4, 237 Wis. 2d
332, 613 N.W.2d 918, here the information concerning Grady’s comments to his
grandfather is prohibited because it was hearsay. Thus, his grandfather could not testify to
Grady’s prior statement. Besides, this
was not an ordinary plea negotiation.
The plea bargain was communicated to Grady by his grandfather. There are other reasons why Grady may have
declined the offer of immunity which blur his claim of innocence. First, he may not have wanted to reveal the
extent of his involvement in this crime to his grandfather for fear of losing
his affection, or he may also have believed that the State did not have
sufficient proof to convict him, since he knew that he was not present for the
actual shooting. However, what is fatal
to Grady’s argument is the fact this evidence was excludable on hearsay
grounds.
D. No new trial is needed here in
the interest of justice.
¶32 Grady’s final argument is that he is entitled to a new trial in
the interest of justice. Wisconsin Stat. § 752.35 (2005-06)
allows the court of appeals to reverse a judgment and remand for a new trial
where it appears from the record that:
(1) “the real controversy has not been fully tried,” or (2) where
it is possible that justice has for any reason miscarried. Vollmer v. Luety, 156
¶33 Grady claims we should order a new trial because this was a close case, noting that, at one point, the jury indicated it was deadlocked. He rehashes his arguments concerning the failure to call expert witnesses to testify to Grady’s predilection to be coerced by the police and his belief that a witness should have been called to discuss false confessions in general. He also points to the fact he was required to go to trial with an attorney who had represented him for just nineteen days. We are not persuaded by his arguments.
¶34 A defendant is not entitled to a perfect trial but to a fair
trial. State v. Hanson, 2000 WI
App 10, ¶20, 232
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
[1] As
amended effective February 1, 2003, by 2001
[2] State
v. Machner, 92
[3] Miranda
v.
[4] Miranda,
384
[5] The State points out that there is no affidavit from Attorney Schiro confirming that he overlooked the letter and the medical reports.
[6] Grady
did state in a one-sentence argument that his constitutional right to present a
defense was violated when the trial court refused to permit his grandfather to
testify. Grady failed to develop this
argument and did not raise it at trial.
Therefore, we decline to address it.
See State v. Rogers, 196