COURT OF APPEALS DECISION DATED AND FILED May 20, 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. Raheim R. Cason, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 PER CURIAM. Raheim R. Cason appeals pro se from the circuit court order that denied his motion for postconviction relief under Wis. Stat. § 974.06 (2005-06).[1] Cason claimed that his trial and postconviction counsel were ineffective. The circuit court denied his motion without a hearing, and we affirm.
Background
¶2 A jury convicted Cason of attempted first-degree intentional homicide while using a dangerous weapon and first-degree reckless injury while using a dangerous weapon. The evidence included Precious LeFlore’s testimony that Cason shot her at point-blank range. A hospital discharge summary, admitted on stipulation of the parties, reflected that LeFlore was shot in the arm, hip, and buttocks, but sustained only soft-tissue injury.
¶3 Cason claimed that he was not the shooter. He attempted to subpoena Lisa Weddles to testify that she witnessed a man who did not match Cason’s description shoot LeFlore from a distance. Cason failed to serve Weddles, and she did not appear for trial. The circuit court denied Cason’s motion to introduce at trial Weddles’s out-of-court statement to police.
¶4 Cason appealed his conviction in State v. Cason, No. 2001AP809-CR, unpublished slip op. (WI App Jan. 29, 2002) (Cason I). He contended, among other matters, that the circuit court erred in refusing to admit Weddles’s statement in lieu of her trial testimony. We concluded that any error was harmless. Weddles’s statement was inconsistent with the physical evidence; accordingly, there was no reasonable possibility that excluding the statement affected the outcome of the trial.
¶5 Cason next moved the circuit court for postconviction relief pursuant to Wis. Stat. § 974.06. He asserted that trial counsel was ineffective in several respects, including: (1) by failing to secure Weddles’s presence at trial; and (2) by failing to subpoena a witness to testify that LeFlore’s injuries were not life-threatening. He argued that his postconviction counsel was in turn ineffective by failing to raise these allegations during Cason’s direct appeal.[2] The circuit court denied the claims without a hearing, and this appeal followed.
Discussion
¶6 The two-prong test for proving ineffective assistance of
counsel requires the defendant to show that counsel’s performance was deficient
and that the defendant was prejudiced as a result. Strickland
v.
¶7 To prove counsel’s deficiency, Cason must show that “‘counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.’” State
v. Pote, 2003 WI App 31, ¶15, 260
¶8 When a defendant claims ineffective assistance of
postconviction counsel on the basis of a failure to assert trial counsel’s
ineffectiveness, the defendant must first establish that trial counsel provided
ineffective assistance. State
v. Ziebart, 2003 WI App 258, ¶15, 268
Failure to Subpoena Weddles
¶9 In his direct appeal, Cason claimed circuit court error in refusing to admit Weddles’s out-of-court statement into evidence. We held that any such error was harmless. Cason I, unpublished slip op. at ¶¶18-19.
¶10 In his postconviction motion, Cason claimed that trial counsel was ineffective by failing to subpoena Weddles to testify at trial. Cason did not include an offer of proof that Weddles’s in-court testimony would have differed from her out-of-court statement. He merely rephrased his earlier claim of circuit court error as a claim of ineffective assistance of counsel.
¶11 The test for prejudice in an effective assistance of counsel
claim and the test for harmless error are “‘essentially consistent.’” Ziebart, 268
¶12 Accordingly, trial counsel’s failure to subpoena Weddles to
testify in person to the same facts as were in her statement had no adverse
effect on the outcome of the proceedings.
Weddles’s absence from trial thus did not prejudice Cason. See
Pote,
260
¶13 Our inquiry goes no further.
Cason’s showing was inadequate to satisfy one Strickland prong. Therefore, we need not address the
other. See Pote, 260
Failure to Offer Medical Testimony
¶14 We turn to Cason’s contention that trial counsel was ineffective by failing to subpoena a witness who would testify that the victim’s injuries were not serious. We conclude that Cason’s motion was legally insufficient to sustain the claim.
¶15 A postconviction motion must “state sufficient material facts
that, if true, would entitle the movant to relief.” See
Allen,
274
¶16 Cason’s motion lacked the requisite specificity. Cason relied primarily on a conclusory assertion that trial counsel knew of “medical staff/doctor” who could have testified that LeFlore’s injuries were not life-threatening. However, the motion did not identify the witness that trial counsel failed to subpoena. Cason’s motion also failed to show how the missing witness got his or her information, and where the witness could be found.
¶17 Further, Cason identifies no deficiency in trial counsel’s
performance. Testimony highlighting LeFlore’s
injuries would have been adverse to the defense theory that Cason was not the
gunman. Cason’s motion does not show
that counsel was unreasonable in foregoing such testimony. Reasonable strategic decisions do not
constitute ineffective assistance of counsel.
¶18 Nor does Cason show any prejudice from counsel’s failure to
subpoena a medical witness. Cason
contends that the missing testimony would have nullified a necessary element of
attempted first-degree intentional homicide, namely, intent to kill. Cason is wrong. “Attempted first-degree murder does not
require that injuries of any particular degree of severity result. Convictions for attempted first-degree murder
have resulted where the defendant attempted to shoot someone but failed and the
victim went unscathed.” State
v. Dix, 86
¶19 Cason shot the victim at point-blank range. As in Dix, the evidence “does not suggest
that [Cason] was purposely avoiding inflicting a mortal wound.” See id. at 484. Rather, the record shows a fully completed
attempt to murder that was fortuitously unsuccessful. Explicit testimony that LeFlore was not more
seriously injured is simply irrelevant in this context. Cf. State v. Webster, 196
¶20 We reject both of Cason’s claims that trial counsel was
ineffective. Accordingly, we conclude
that Cason’s postconviction counsel was not ineffective for failing to pursue
these claims. No attorney is ineffective
for failing to make meritless arguments.
State v. Toliver, 187
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Cason
raised several additional claims in his circuit court motion, but he does not
pursue them on appeal. We deem them
abandoned, and we address them no further.
See Adler v. D&H Indus., Inc.,
2005 WI App 43, ¶18, 279