COURT OF APPEALS
DECISION
DATED AND FILED
April 22, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Marius A. Battle,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: JEFFREY
A. CONEN, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 WEDEMEYER, J. Marius A. Battle appeals
from a judgment entered after a jury found him guilty of one count of
first-degree reckless injury, with the use of a dangerous weapon, as party to a
crime and habitual criminality, contrary to Wis.
Stat. §§ 940.23(1)(a), 939.63, 939.05, and 939.62 (2001-02). He also appeals from an order denying his
postconviction motion. Battle
claims: (1) the evidence is insufficient
to support the verdict; (2) the trial court erred in summarily rejecting his
claim that his trial counsel provided ineffective assistance; and (3) the trial
court erred when it refused to suppress the identification of Battle on the grounds that the photo array
used was unduly suggestive. Because the
evidence was sufficient to support the verdict; because Battle
failed to establish ineffective assistance of counsel; and because the trial
court did not erroneously exercise its discretion when it denied Battle’s motion to
suppress, we affirm.
BACKGROUND
¶2 On the evening of July 31, 2001, there was an incident
involving the victim, T.J. Howard, and a group of four men. Howard recognized most of the men in the
group from the neighborhood. He knew
them by their street names: B.D., Ken
and Tattoo. Ken put a gun to Howard’s
head and made a derogatory remark.
Howard responded by asking Ken not to shoot him. Ken pulled the trigger. Howard reached for Ken’s gun. Howard also heard another gun firing at him.
¶3 Howard was shot in his left thigh, above his stomach, the
right side of his chest, his left arm, once in the groin, and eight times in
the right leg. The four men ran off
after the shooting and Howard was taken to Children’s Hospital. During the ambulance ride, he told the people
in the ambulance that Ken, Tattoo and B.D. shot him.
¶4 While at the hospital, Milwaukee Police Detective Douglas
Williams documented the injuries and collected the recovered bullets from the
hospital staff. There were two different
types of bullets: one was a .45 caliber
bullet and one was a .357 caliber bullet.
The detective also came to Howard’s room with a photo array. The array consisted of six color photos of
black males similar in characteristics to Tattoo. Howard immediately identified Tattoo as one
of his assailants. Tattoo was later
identified by his real name, Marius A. Battle.
¶5 Battle
was charged with second-degree recklessly endangering safety, as a party to a
crime, while armed, and as a habitual criminal.
The charge was later amended to first-degree reckless injury, while
armed, as a party to a crime, and as a habitual criminal. Battle
entered a not guilty plea and the case was set for trial.
¶6 During pre-trial proceedings, Battle filed a motion to suppress the
identification and requested a hearing.
He asserted that the photo array shown to Howard at the hospital was
“unduly suggestive.” The trial court
held a suppression hearing on the motion on April 24, 2002.
¶7 At the hearing, Detective Williams testified about the
identification via the photo array presented to Howard at the hospital. Williams indicated that Howard was in the
hospital, but was alert and able to speak.
Battle’s
counsel then asked Williams whether Howard was on any sort of medication at the
time. Williams responded that he did not
know. The court sustained an objection
to this line of questioning, ruling it irrelevant. Howard also testified at the hearing. He stated that he remembers the day of the
incident, that he was alert at the hospital and that he had taken Tylenol 3,
which has codeine in it for the pain.
Howard testified that the medication did not make him feel dizzy or
woozy and it did not affect his eyesight or his ability to read.
¶8 At the conclusion of the hearing, the trial court denied Battle’s motion to
suppress and the case went to trial. At
trial, in addition to Howard’s testimony, the State also called Corey Sykes,
whose street name is B.D. who was one of the four men involved in the assault
on Howard the night of the incident.
Sykes testified that Battle’s
street name is “Tattoo.” Sykes stated he
agreed to testify truthfully in this case in exchange for a plea agreement from
the State. Sykes indicated that he was
with Battle on the night in question, and that
Ken and Battle
had guns. Battle had a semi-automatic .45 caliber
handgun and Ken had a semi-automatic .357 caliber pistol. The fourth member of the group was identified
as Vic, and he had a .40 caliber pistol.
¶9 Sykes told the jury that when the group saw Howard, Battle said “That was the
guy that pulled a gun on [me].” The
group approached Howard and Ken put a gun to Howard’s forehead. Ken said something and Howard said “Don’t
kill me.” Sykes then heard multiple
gunshots and believed that more than one gun was fired. Sykes also stated that he saw Tattoo pull out
his gun and point it at Howard.
¶10 The jury convicted Battle and he was sentenced to twenty years
in prison, consisting of thirteen years of initial confinement and seven years
of extended supervision. Judgment was
entered. Battle filed a postconviction motion, which
was denied. He now appeals.
DISCUSSION
A. Sufficiency of the Evidence.
¶11 Battle
contends that the evidence was insufficient to support the verdict. He asserts that because Howard’s testimony
was inconsistent as to whether Howard actually saw Battle with a gun, that the State failed to
satisfy their burden of proof. We cannot
agree.
Our standard in reviewing sufficiency of the evidence
claims is:
[we] may not
substitute [our] judgment for that of the trier of fact unless the evidence,
viewed most favorably to the state and the conviction, is so lacking in
probative value and force that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt.
If any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite
guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.
State v. Poellinger,
153 Wis. 2d
493, 507, 451 N.W.2d 752 (1990) (citations omitted).
¶12 Battle
supports this argument by pointing out that Howard testified he could not say
with certainty that “Tattoo” had a gun.
Rather, Howard saw Tattoo “standing in the background like—like this
with something—like he had something in his pocket under his shirt,” which
Howard believed to be a gun. Battle also points out
that Howard testified at the preliminary hearing: “Man, I saw them all with guns.” Battle
asserts that this testimony and the other evidence are insufficient to support
the verdict rendered in this case.
¶13 Based on the standard of review set forth above, we reject Battle’s contention. Battle
was found guilty of first-degree reckless injury, which has three
elements: (1) the defendant caused great
bodily harm to the victim; (2) the harm was caused by criminally reckless
conduct; and (3) the conduct showed utter disregard for human life. Wis.
Stat. § 940.23(1). Our
review of the evidence demonstrates that the State proved each element beyond a
reasonable doubt.
¶14 First, the evidence and all reasonable inferences that can be
drawn from the evidence showed that Battle
caused great bodily harm to the victim.
Although there was some inconsistency in Howard’s testimony, the jury
was entitled to assess which was most credible.
Moreover, Sykes’s trial testimony confirmed Howard’s testimony that Battle shot him. Sykes told the jury that Battle
had a .45 caliber gun, that Battle was present,
that Battle pointed his gun at Howard and that Battle fired first. Further, the physical evidence implicated Battle as one of the
shooters. The bullet recovered at the
hospital matched the bullet of the gun that Battle had.
From this evidence, the jury could reasonably infer beyond a reasonable
doubt that Battle
caused great bodily harm to Howard.
¶15 The second element requires proof that Battle’s conduct was criminally
reckless. The evidence reasonably
suggests that Battle
initiated the confrontation, that he fired multiple shots on the public street
in a group of people and then ran away.
Such constitutes criminally reckless conduct.
¶16 The third element requires proof that Battle showed utter disregard for human
life. The same evidence supporting the
second element supports this element as well.
Accordingly, we reject Battle’s
contention that the evidence was insufficient to support the verdict. There was sufficient evidence in the record
from which a reasonable jury could conclude that all three elements were proven
beyond a reasonable doubt.
B. Ineffective Assistance.
¶17 Battle also claims that his trial counsel provided ineffective
assistance for failing to raise Howard’s state of mind in the hospital during
the identification, as additional grounds to suppress the identification. The trial court summarily rejected this claim,
ruling:
The
defendant’s assertion is wholly conclusory and without the requisite factual
support to maintain a claim of this nature.
Howard’s testimony in the suppression hearing provides no support for
the defendant’s position, and based on his testimony that his pain medication
(Tylenol with Codeine) did not affect his eyesight or his ability to read, that
it did not make him dizzy or woozy, and that it merely “stopped the pain” – in
conjunction with Detective Williams’ testimony that Howard was completely alert
and immediately identified the defendant from the photo array, there is not a
reasonable probability that counsel’s failure to pursue the victim’s state of
mind at the motion hearing would have altered the outcome.
¶18 In reviewing claims of ineffective assistance of counsel, we
are governed by the following standards.
In order to establish that he or she did not receive effective
assistance of counsel, the defendant must prove two things: (1) that his or her lawyer’s performance
was deficient; and (2) that “the deficient performance prejudiced the
defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984); State
v. Sanchez, 201 Wis.
2d 219, 236, 548 N.W.2d 69 (1996). A
lawyer’s performance is not deficient unless he or she “made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Strickland,
466 U.S.
at 687. Even if a defendant can show
that his or her counsel’s performance was deficient, he or she is not entitled
to relief unless he or she can also prove prejudice; that is, he or she must
demonstrate that his or her counsel’s errors “were so serious as to deprive
[him or her] of a fair trial, a trial whose result is reliable.” Id. Stated another way, to satisfy the
prejudice-prong, “‘[a] 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. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” Sanchez, 201 Wis. 2d at 236 (citation
omitted).
¶19 In assessing the defendant’s claim, we need not address both
the deficient performance and prejudice components if he or she cannot make a
sufficient showing on one. See Strickland,
466 U.S.
at 697. The issues of performance and
prejudice present mixed questions of fact and law. See Sanchez, 201 Wis. 2d at 236. Findings of historical fact will not be upset
unless they are clearly erroneous, see id., and the questions of whether
counsel’s performance was deficient or prejudicial are legal issues we review
independently, see id. at 236-37.
¶20 Moreover,
if an appellant wishes to have an evidentiary hearing on an ineffective
assistance of counsel claim, he or she may not rely on conclusory
allegations. If the claim is conclusory
in nature, or if the record conclusively shows the appellant is not entitled to
relief, the trial court may deny the motion without an evidentiary
hearing. State v. Bentley,
201 Wis. 2d
303, 309-10, 548 N.W.2d 50 (1996). To
obtain an evidentiary hearing on the ineffective assistance of counsel claim,
the appellant must allege with specificity both deficient performance and
prejudice in the postconviction motion. Id. at
313-18. Whether the motion sufficiently
alleges facts which, if true, would entitle the appellant to relief is a question
of law to be reviewed independently by this court. Id.
at 310. If the trial court refuses to
hold a hearing based on its finding that the record as a whole conclusively
demonstrates that the defendant is not entitled to relief, our review of this
determination is limited to whether the court erroneously exercised its
discretion in making this determination.
Id.
at 318.
¶21 Based on these standards, we agree with the trial court’s
assessment. The “state-of-mind” issue,
although not officially raised, was in fact addressed sufficiently to
demonstrate that Howard’s state of mind was not an issue that would have
resulted in the granting of the suppression motion. Williams’s testimony indicates that Howard
was alert and able to make a positive identification. Howard testified that he was on Tylenol 3,
but that his state of mind was not affected in any way. Accordingly, pursuing the state of mind issue
would not have altered the outcome of the suppression motion. Thus, Battle
has failed to establish that his trial counsel provided ineffective assistance
based on this assertion.
C. Suppression Ruling.
¶22 Battle
also asserts that the trial court erred when it denied his suppression
motion. Battle claims the photo array was unduly
suggestive based on Howard’s statement that he knew all of the individuals
depicted in the array. We are not
convinced.
¶23 We review a motion to suppress in two steps. State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d
625. We will uphold the trial court’s
findings of fact unless clearly erroneous, but we apply constitutional
principles to the facts de novo. See State v.
O’Brien, 223 Wis.
2d 303, 315, 588 N.W.2d 8 (1999). The facts are
undisputed and thus, the issue is a legal one.
¶24 Whether an eyewitness identification of a defendant by means of
a photo array should be suppressed is governed by State v. Mosley, 102 Wis. 2d 636, 307 N.W.2d 200 (1981), and Powell
v. State, 86 Wis.
2d 51, 271 N.W.2d 610 (1978). The
standards set forth in these cases were recently affirmed in State
v. Drew, 2007 WI App 213, ___ Wis. 2d ___, 740 N.W.2d 404.
First, the defendant has the burden to demonstrate the
out-of-court photo identification was impermissibly suggestive; if the
defendant meets this burden, the State has the burden to show that the
identification is nonetheless reliable under the totality of the
circumstances. Mosley, 102 Wis. 2d at 652, 307 N.W.2d 200 (citing Powell,
86 Wis. 2d at
63-66, 271 N.W.2d 610).
Drew, 740 N.W.2d 404, ¶13. “‘It is the likelihood of misidentification
which violates a defendant’s right to due process. ’” Powell, 86 Wis. 2d at 64 (citation omitted).
¶25 Here, Battle
argues that the photo array was unduly suggestive because Howard stated he knew
all the people in the photo array. He
contends that because Howard had “previous familiarity with the faces in the
photo line-up, the photo array was unduly suggestive.” Battle
does not cite to any case law to support this proposition, nor does he explain
why knowing the persons depicted in the array impermissibly suggests who shot
him.
¶26 Thus, we conclude that Battle
has failed to demonstrate that the photo array was impermissibly
suggestive. The record reflects that
Howard recognized Tattoo from the neighborhood.
The detective, who knew Battle to use the
street name Tattoo, decided to put Battle’s
picture in the photo array based on that information. It is undisputed that the other photos chosen
for the array were males of the same general age, hairdo, facial type and skin
color. It is undisputed that the
detective did not do or say anything to suggest to Howard who to pick. It is undisputed that Howard immediately
recognized and identified Tattoo as one of his assailants. Thus, there was nothing impermissibly
suggestive about the photo array. Based
on all of these facts, we conclude that the identification of Battle from the photo array was
reliable. The fact that Howard
recognized all of the people depicted in the array from the neighborhood does
not affect the reliability of the identification.
¶27 Based on the foregoing, we conclude that Battle failed to satisfy his burden of
proving that the photo array was unduly suggestive. We also conclude that the identification was
reliable. Accordingly, the trial court
did not err in denying the motion to suppress.
By the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.