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COURT OF APPEALS
DECISION
DATED AND FILED
June 17, 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 III
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State of Wisconsin,
Plaintiff-Respondent,
v.
Peter J. Seymour,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Oconto County: michael
t. judge, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Peter Seymour appeals a
judgment, entered upon a jury’s verdict, convicting him of attempted
first-degree intentional homicide. Seymour also appeals an
order denying his motion for postconviction relief. Seymour
seeks a new trial on the basis of ineffective assistance of trial counsel or,
alternatively, in the interest of justice.
We reject Seymour’s
arguments and affirm the judgment and order.
Background
¶2 In June 2005, the State charged Seymour with attempted first-degree
intentional homicide arising from the shooting of Menominee County Sheriff’s
Deputy Louis Moses. At trial, Moses
testified that at approximately 6:18 p.m. on the evening of May 25, 2005, he
responded to a residential burglary alarm near Keshena. After doing a brief perimeter check of the
house, Moses began to exit the driveway.
As he was turning right out of the driveway, Moses looked to his left
and noticed an individual wearing baggy blue jeans and a black shirt walking
approximately 200 yards up the road.
Moses started to turn his squad car around and when he looked back up
the road, the individual was gone. Moses
and his K-9 unit dog ultimately tracked the individual into the woods.
¶3 As Moses started to close in on the person, Moses ordered him
to stop, warning that he would release the dog.
The person continued to run, and Moses testified that although they were
in a brushy, wooded area, he could see “flashes” of the person as he ran
through the trees. After a second
warning from Moses, the individual stopped running. As Moses stepped over a log to make his way
to the individual, he heard a shot, felt pain in his chest and looked up to see
a man he identified as Seymour pointing a gun at him from approximately twenty
yards away. The bullet struck the Kevlar
vest Moses was wearing. Moses then fell
forward and heard a second shot go off.
Moses testified that he recognized Seymour
because he had arrested him three days earlier for a separate incident.
¶4 Defense witnesses placed Seymour
in Green Bay between 5:30 and 6:45 p.m. on May
25, 2005, and one witness testified Seymour
had his cell phone during that time.
Another defense witness, Orlin Sanapaw, testified that he spoke with Seymour by phone at
approximately 6:30 p.m. and again at 10 p.m. on May 25. Gregory Selig, a telecommunications engineer,
testified that Seymour’s
prepaid cell phone operated only within the cell company’s home network, and
that did not include the Keshena area.
Selig further testified that calls were made from Seymour’s phone beginning at 5:56 p.m. on May
25, with an additional nine calls made between then and 7:31 p.m. Although those calls went through Green Bay cell towers,
Selig could not identify the cell phone user.
Finally, an identification expert testified about various factors
affecting the accuracy of eyewitness identification. Ultimately, the jury found Seymour guilty of the crime charged. Following a Machner
hearing, the trial court denied Seymour’s
postconviction motion for a new trial.
This appeal follows.
Discussion
I. Ineffective Assistance of Counsel
¶5 Seymour
claims he was denied the effective assistance of trial counsel. This court’s review of an ineffective assistance
of counsel claim is a mixed question of fact and law. State v. Erickson, 227 Wis. 2d 758, 768, 596
N.W.2d 749 (1999). The court’s findings
of fact will not be disturbed unless they are clearly erroneous. Id. However, the ultimate determination whether
the attorney’s performance falls below the constitutional minimum is a question
of law that this court reviews independently.
Id.
¶6 “The benchmark for judging whether counsel has acted
ineffectively is stated in Strickland v. Washington, 466 U.S. 668
(1984).” State v. Johnson,
153 Wis. 2d
121, 126, 449, N.W.2d 845 (1990). To
succeed on his ineffective assistance of counsel claim, Seymour must show both: (1) that his counsel’s representation was
deficient; and (2) that this deficiency prejudiced him. Strickland, 466 U.S. at
694.
¶7 In order to establish deficient performance, a defendant must
show that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
at 687. However, “every effort is made
to avoid determinations of ineffectiveness based on hindsight … and the burden
is placed on the defendant to overcome a strong presumption that counsel acted
reasonably within professional norms.” Johnson,
153 Wis. 2d
at 127. In reviewing counsel’s
performance, we judge the reasonableness of counsel’s conduct based on the
facts of the particular case as they existed at the time of the conduct and
determine whether, in light of all the circumstances, the omissions fell
outside the wide range of professionally competent representation. Strickland, 466 U.S. at
690. Because “[j]udicial scrutiny of
counsel’s performance must be highly deferential … the defendant must overcome
the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Id. at
689. Further, “strategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Id. at
690.
¶8 The prejudice prong of the Strickland test is
satisfied where the attorney’s error is of such magnitude that there is a
reasonable probability that, absent the error, the result of the proceeding
would have been different. Id. at
694. We may address the tests in the order
we choose. If Seymour fails to establish prejudice, we need
not address deficient performance. State
v. Sanchez, 201 Wis. 2d
219, 236, 548 N.W.2d 69 (1996).
¶9 Here,
Seymour makes
related arguments concerning the theory of defense pursued at trial. Specifically, Seymour claims trial counsel
was ineffective for (1) pursuing the “cell phone defense theory,” which
attempted to use Seymour’s cell phone records to show that he was in Green Bay
at the time of the shooting; (2) inadequately investigating whether Lance
Casper was the person who shot Moses; and (3) failing to call two witnesses,
Frank and Ruth Sanapaw, to testify about Casper’s alleged admissions that he
shot Moses. Ultimately, the crux of Seymour’s arguments is
that counsel was ineffective for pursuing an alibi defense rather than arguing
that Lance Casper was the shooter. We
are not persuaded.
¶10 At
the Machner
hearing, trial counsel testified regarding his reasons for opting not to pursue
the Lance Casper defense. With respect
to Ruth and Frank Sanapaw, Seymour
contends that counsel’s decision to “abandon” the Sanapaws’ testimony was
unreasonably based on counsel’s mistaken belief that their testimony was
inadmissible hearsay. Even assuming
their testimony was admissible, counsel indicated that the Sanapaws’ testimony
regarding Casper’s
alleged inculpatory statements was “not very strong.” Counsel explained he was concerned about the
Sanapaws’ credibility because of the “close connection” between Seymour and the
Sanapaws. Counsel continued:
Also, as far as I was concerned, I was very worried
about—well, Peter Seymour was up there in the reservation. He had very close ties to the Sanapaws. I know he was involved with drugs. So frankly, I was concerned about getting
that type of information, and I was concerned generally with how the
credibility of the witnesses as far as the Sanapaws were concerned would come
down and how that would influence the jury.
Seymour fails to establish that he was
prejudiced by counsel’s failure to pursue a defense based on this arguably weak
testimony.
¶11 Additionally,
Seymour has not established that pursuing the Casper defense would have
led to a different outcome. Counsel
testified that he rejected the Casper defense
because Casper did not look like Seymour, making it harder to argue that Moses had mistaken
Seymour for Casper.
On direct examination at trial, Moses testified he was positive that Casper did not shoot
him. Moses indicated that Casper was “practically [his] neighbor” and he saw Casper on a daily
basis. Moses also indicated that
although the assailant was around 6’ 3” to 6’ 4” tall—Seymour’s
height—Casper
was around 5’ 8” tall.
¶12 Citing
Orlin Sanapaw’s postconviction hearing testimony, Seymour
nevertheless argues that he and Casper
look alike. When asked whether Seymour and Casper
look alike, Orlin responded: “From a
ways away, yeah. How are you going to
tell them apart?” Orlin acknowledged,
however, that the two men were of dramatically different heights. Moreover, three other witnesses, including a
woman who was once Casper’s girlfriend,
testified at the postconviction hearing that Seymour
and Casper look
nothing alike. Given Moses’ familiarity
with both men and their dissimilar appearances, counsel made a reasonable
strategic decision to forego the Casper
defense.
¶13 Seymour nevertheless
claims counsel should not have pursued the alibi/cell phone defense without
corroboration. That defense, however,
was consistent with Seymour’s statements to law
enforcement that he was in Green Bay
at the time of the shooting. Counsel
attempted to bolster this defense through the use of cell phone records and
witnesses who would corroborate Seymour’s
alibi claim. Based on trial counsel’s
testimony, the trial court found that counsel’s “pursuit of the cell phone
defense theory was a reasonable and reasoned defense strategy.” Given this finding of reasonableness,
counsel’s chosen strategy is “virtually unassailable.” State v. Maloney, 2004 WI App 141,
¶23, 275 Wis.
2d 557, 685 N.W.2d 620. That the jury
did not believe Seymour’s
alibi witnesses is not enough to demonstrate ineffective assistance of trial
counsel. See State v. Robinson, 177 Wis. 2d 46, 58, 501 N.W.2d 831 (Ct. App. 1993).
“Effective representation is not to be equated with a not guilty
verdict.” Id.
¶14 Seymour
next contends that counsel was ineffective for failing to follow up with the
identification expert concerning the effect of distance on the reliability of
eyewitness identification. We are not
persuaded. It is a matter of common
knowledge that one’s ability to identify someone decreases as distance
increases. Seymour cannot, therefore, establish that he
was prejudiced by counsel’s failure to elicit expert testimony on a point that
required no expert testimony.
¶15 Seymour additionally argues that counsel was ineffective
with respect to the manner in which he handled Seymour’s request to take a polygraph
test. Seymour
contends that after he volunteered to take a polygraph test, his trial counsel
“ill-advised Seymour
that the SPD does not pay for polygraph tests.”
Seymour,
however, does not provide any evidence that the SPD would have paid for a
polygraph test. Seymour nevertheless contends that he “lost
any benefit from a polygraph, not because the SPD would not pay for it, but
because [counsel] acquiesced to the district attorney’s opposition to admitting
polygraph results.” To the extent Seymour claims that but for counsel’s acquiescence, the
polygraph test would have been admissible, Seymour is mistaken. “The result of a polygraph test is
inadmissible in Wisconsin.” State v. Shomberg, 2006 WI 9, ¶39,
288 Wis. 2d
1, 709 N.W.2d 370.
¶16 Seymour correctly notes
that an offer to take a polygraph test is relevant to an assessment of the
offeror’s credibility and may be admissible for that purpose. See
id. “However, such an offer is only relevant to
the state of mind of a person making the offer as long as the person making the
offer believes that the test or analysis is possible, accurate, and
admissible.” Id.
Nothing in the record demonstrates that at the time Seymour offered to take a polygraph test, he
believed that the test would be “possible, accurate, and admissible.” Seymour
further fails to show how his offer to take the test would have benefitted
him. Seymour did not testify at trial, but
contends “it is not improbable that he may have testified in his own defense,
if he were given proper legal advice about the admissibility of polygraph
information.” Seymour’s speculation that he may have testified does not satisfy his
burden of showing that he was prejudiced by this claimed deficiency on the part
of trial counsel.
¶17 Seymour concludes his
ineffective assistance of counsel argument with a discussion of purported
errors in the circuit court’s decision denying postconviction relief. Seymour argues the trial court applied the
wrong legal standard when deciding his postconviction motion, claiming the
court should have applied the standard set forth in State v. McCallum, 208
Wis. 2d 463, 561 N.W.2d 707 (1997). Even
were we to assume the court applied the wrong legal standard, that would not be
a basis for reversal because the ultimate determination whether the
attorney’s performance falls below the constitutional minimum is a question of
law that this court reviews independently. Erickson, 227 Wis. 2d at 768.
¶18 Seymour
next argues that the circuit court “made an erroneous factual determination
when it disregarded” the testimony of Orlin and Roger Sanapaw at the
postconviction hearing. Although the
circuit court erred, as a factual matter, when it stated in its decision that Orlin
did not testify at the postconviction hearing, Seymour has failed to show that Orlin’s
testimony supported his ineffective assistance of counsel claim. As noted above, Orlin’s testimony that Seymour and Casper
looked similar “from a ways away,” despite their height difference, was
countered by Moses’ trial testimony and the postconviction hearing testimony of
three defense witnesses who testified that the men looked nothing alike. See
supra, ¶¶11-12. Seymour also
complains that the jury never heard Orlin’s testimony that he considered Casper to be dangerous and a potential suspect because Casper previously
threatened to shoot up his house. Seymour fails, however, to explain how Orlin’s opinion
about Casper
would be admissible or how its admission would have changed the outcome.
¶19 With respect to Roger Sanapaw, Seymour emphasizes Roger’s testimony in which
he recounted meeting with a police detective during the trial. According to Roger, the detective indicated
they were not looking at the possibility of other people committing the crime
because they “had the right guy.” It is
neither surprising nor noteworthy that law enforcement officials would think
they had the “right guy” by the time of trial.
Seymour
therefore fails to establish that Roger’s testimony supported his ineffective
assistance of counsel claim.
II. A New Trial in the Interest of Justice
¶20 Seymour seeks a new trial
under Wis. Stat. § 752.35,
which permits us to grant relief if we are convinced “that the real controversy
has not been fully tried, or that it is probable that justice has for any
reason miscarried.” In order to
establish that the real controversy has not been fully tried, Seymour must convince us “that the jury was
precluded from considering ‘important testimony that bore on an important
issue’ or that certain evidence which was improperly received ‘clouded a
crucial issue’ in the case.” State
v. Darcy N.K., 218 Wis. 2d 640, 667,
581 N.W.2d 567 (Ct. App. 1998) (quoting State v. Hicks, 202 Wis. 2d 150, 160, 549
N.W.2d 435 (1996)). To establish a
miscarriage of justice, Seymour
“must convince us ‘there is a substantial degree of probability that a new
trial would produce a different result.’”
Darcy N. K., 218 Wis. 2d at 667
(quoting State v. Caban, 210 Wis.
2d 597, 611, 563 N.W.2d 501 (1997)). An
appellate court will exercise its discretion to grant a new trial in the
interest of justice “only in exceptional cases.” State v. Cuyler, 110 Wis. 2d 133, 141, 327
N.W.2d 662 (1983).
¶21 Seymour argues the real
controversy has not been fully tried because the jury did not hear Frank and
Ruth Sanapaw’s testimony regarding Casper’s
alleged inculpatory statements. As noted
above, Seymour fails to establish that he was
prejudiced by the omission of this arguably weak testimony that counsel
reasonably believed could compromise the defense. Given the testimony’s low probative value, we
conclude that its omission did not prevent the real controversy from being
fully tried. Seymour
also contends there has been a miscarriage of justice based on the omission of
testimony from Ruth, Frank and Orlin Sanapaw and Lace Weeder concerning Casper’s alleged
admissions. Orlin, however, did not
testify that he heard Casper admit shooting
Moses but, rather, that he “heard [Casper]
was going around saying he shot the cop.”
Seymour
offers no basis for admission of this double hearsay. With respect to the other three witnesses,
each is an acknowledged friend of Seymour. In light of Moses’ emphatic denial that Casper was the shooter, Seymour fails to establish to a substantial
degree of probability that a jury would reach a different verdict based on this
proffered testimony.
¶22 Ultimately, these claims for discretionary reversal in the
interest of justice hinge on a conclusion that counsel was ineffective for
failing to pursue the Casper
defense. As we discussed above, counsel made a reasonable
strategic decision to forego that defense.
Moreover, Wis. Stat. § 752.35
“was not intended to vest this court with power of discretionary reversal to
enable a defendant to present an alternative defense that may have not been
advanced by trial counsel … whose representation is alleged to be ineffective
because of that failure.” State
v. Flynn, 190 Wis.
2d 31, 49 n.5, 527 N.W.2d 343 (Ct. App. 1994).
¶23 Finally, Seymour
asserts there has been a miscarriage of justice because the identification
expert’s “information about the significant relationship between distance and
accurate information was minimally presented to the jury.” Seymour
fails to establish to a substantial degree of probability that the submission
of expert testimony on a
point that required no expert testimony, would produce a different result. Accordingly, we conclude there is no
reason to exercise our discretionary authority under Wis. Stat. § 752.35
to grant Seymour
a new trial.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.