COURT OF APPEALS
DECISION
DATED AND FILED
November 4, 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.
Willie Adams,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: Mel
Flanagan, Judge. Affirmed.
Before Fine, Kessler, JJ., and Daniel L. LaRocque, Reserve
Judge.
¶1 PER CURIAM. Willie Adams appeals from
a judgment of conviction and from an order denying his motion for
postconviction relief. He claims that he
received ineffective assistance from his trial counsel and that the circuit
court erred by denying this claim without a hearing. He further claims that the circuit court
should have suppressed his custodial statements. We reject his contentions and affirm.
BACKGROUND
¶2 Adams shot and killed LaShaun Hayes on April 2, 2004, outside
of a Milwaukee
tavern. Adams fled to Chicago, where he was apprehended several
weeks later. The State charged Adams with first-degree intentional homicide while armed
with a dangerous weapon.
¶3 Adams moved to bar the State
from using his custodial statements at trial, asserting that the statements
were obtained in violation of his rights under Miranda v. Arizona, 384
U.S. 436 (1966). At the suppression
hearing, Milwaukee detectives testified that
they questioned Adams at a Chicago police station
in April 2004, and at the Milwaukee
Police Administration
Building in May
2004. The detectives described advising Adams of his Miranda rights, including his right
to consult with a lawyer and his right to have a lawyer present during
questioning. See id. at 444-45. According
to the detectives, Adams made statements on
both occasions without ever requesting a lawyer. Adams, by contrast, testified that he asked
for a lawyer during his contacts with detectives in both Chicago
and Milwaukee. Additionally, he described calling and
meeting with a lawyer, Attorney Earl Washington, while in the Chicago jail.
¶4 The circuit court rejected Adams’s
testimony and credited the testimony of the detectives. The court found that Adams
was advised of his rights and that he waived them freely, voluntarily, and
intelligently. Accordingly, the court denied
the motion to suppress Adams’s custodial
statements.
¶5 Adams’s trial began in March
2006, and lasted for eight days. We
summarize here only the evidence necessary to an understanding of the issues on
appeal.
¶6 Adams described spending the
evening of April 2, 2004, at Mike’s Huh Tavern with several companions,
including Valerie Burgess and Charnaye Vogelmann. As the evening progressed, Adams
grew suspicious that some in the tavern might be planning to rob or assault
him. Adams
testified that he and Burgess left the tavern for a time, leaving Vogelmann
behind playing pool.
¶7 According to Adams, he
returned to the tavern to get Vogelmann.
Because Adams still feared a robbery,
he brought a gun. As he approached the
tavern, its front door flew open and Hayes emerged. Adams
testified that Hayes swore and pulled out a gun. To prevent Hayes from firing his weapon, Adams pulled out his own gun and fired numerous shots
towards Hayes. Adams
then fled the scene.
¶8 The State’s theory was that Adams
shot Hayes on sight without justification.
The State relied, in part, on one of Adams’s custodial statements, in
which Adams admitted that he fired his weapon without
knowing whether Hayes had a gun.
¶9 Paul Hnanicek testified for the State. He told the jury that he was following Hayes
out of Mike’s Huh Tavern when Adams began
shooting. Hnanicek testified that Hayes
had a gun, but never took it out of his waistband. Hnanicek also testified that Vogelmann was
still inside the tavern playing pool at the time of the shooting.
¶10 Vogelmann herself did not testify. The State called her grandson, Troy Warren,
who testified that Vogelmann had cancer in April 2004, and did not go to
taverns at that time. Warren asserted that Vogelmann was not at
Mike’s Huh Tavern on the night of the shooting.
¶11 The State called Burrell Maull, who told the jury that he and
Adams had been friends for many years.
Maull testified that he was at Mike’s Huh Tavern on April 2, 2004. He described walking out of the tavern behind
Hayes and Hnanicek when he heard shooting.
According to Maull, Hayes came back into the bar immediately after shots
were fired and dropped a gun that Maull retrieved and later traded for crack
cocaine.
¶12 Maull’s testimony did not conform to the State’s expectations,
and much of Maull’s time on the stand was consumed by exploration of his prior
statements. Maull acknowledged that when
he spoke to police shortly after the shooting he described fighting and drug
dealing in the tavern. He acknowledged
that he told no one that Hayes had a weapon until the day before trial, when he
disclosed to the prosecution that he “saw something silver” in Hayes’s
waistband that he believed was a gun.
Maull further acknowledged that he never reported finding Hayes’s gun on
the floor, or exchanging the gun for drugs, until he so testified at trial.
¶13 The jury returned a verdict rejecting first-degree intentional
homicide and convicting Adams of the lesser
offense of first-degree reckless homicide while armed with a dangerous weapon. The circuit court imposed a thirty-five-year
term of imprisonment, bifurcated as twenty-five years of initial confinement
and ten years of extended supervision.
¶14 Adams filed a postconviction
motion, claiming that his trial counsel was ineffective in two respects. First, he claimed that counsel should have
called Maull as a defense witness to testify that Vogelmann was at the tavern
on April 2, 2004. Adams
argued that this testimony would have bolstered his credibility and
corroborated his claim to have shot Hayes in defense of Vogelmann. Second, Adams
asserted that trial counsel should have called another tavern patron, Lorenzo
Conley, as a defense witness. According
to Adams’s offer of proof, Conley saw two
silhouettes outside of the tavern door that Conley assumed were Hayes and
Hnanicek. These figures were “motioning”
in a way that led Conley to believe that they were arguing with somebody. Moments later, Conley heard gunshots. Adams
contended that this evidence would have corroborated his version of Hayes’s
actions immediately preceding the shooting.
¶15 The circuit court denied Adams’s
motion without a hearing. The court
concluded that Adams was not prejudiced by
trial counsel’s failure to present the proposed testimony from Maull and
Conley. Adams
now appeals, challenging both the circuit court’s decision to admit his
custodial statements and the effectiveness of his trial counsel’s performance.
DISCUSSION
¶16 We first address Adams’s
contention that his custodial statements should have been suppressed because
they were obtained after he invoked his right to counsel in violation of Miranda. In reviewing a Miranda challenge, we are
bound by the circuit court’s factual findings unless they are clearly
erroneous. State v. Ross, 203 Wis. 2d 66, 79, 552
N.W.2d 428 (Ct. App. 1996). We
independently determine whether the facts resulted in a constitutional
violation. State v. Backstrom, 2006
WI App 114, ¶9, 293 Wis. 2d
809, 718 N.W.2d 246.
¶17 When the State seeks to admit a defendant’s custodial
statements into evidence, the State must show, first, that “the accused was
adequately informed of the Miranda
rights, understood them, and knowingly and intelligently waived them.” State v. Santiago,
206 Wis. 2d
3, 18, 556 N.W.2d 687 (1996). The
necessary advisements include the right to counsel and the right to remain
silent. Ross, 203 Wis. 2d at 73-74. Second, the State must show that the
accused’s custodial statements were given voluntarily. Santiago, 206
Wis. 2d at
19. In this appeal, Adams
limits his challenge to a contention that detectives continued to question him
after he asserted his right to an attorney.
Officers must cease questioning a suspect who has invoked the right to
counsel. Ross, 203 Wis. 2d at 74.
¶18 At the suppression hearing, two detectives described advising
Adams of his rights prior to interrogating him and three detectives testified
that Adams never requested an attorney before
or during the interrogation. On appeal, Adams acknowledges the detectives’ testimony, but points
to his own, contrary testimony. He
insists that he told the detectives that he wanted to “exercise his rights” and
that he wanted an attorney.
¶19 The circuit court found the detectives credible. We are bound by that finding. “[A]s to the credibility of disputed
testimony in relation to evidentiary facts, this court will not substitute its
judgment for that of the [circuit] court.”
Turner v. State, 76 Wis. 2d
1, 18, 250 N.W.2d 706 (1977). Based on
the detectives’ testimony, the circuit court determined that Adams was advised
of his rights and that Adams did not ask for
an attorney. These findings are
supported by the credible evidence and, accordingly, they are not clearly
erroneous. See Backstrom, 293 Wis. 2d 809,
¶11. In light of the circuit court’s
factual findings, we are satisfied that Adams’s
statements were obtained without constitutional taint. Therefore, the circuit court properly denied
the motion to suppress.
¶20 We turn next to Adams’s claims
that his trial counsel was ineffective. To
establish ineffective assistance of counsel, a defendant must show both
deficient performance by counsel and prejudice as a result of the
deficiency. Strickland v. Washington,
466 U.S.
668, 687 (1984). To prove deficient
performance, Adams must show that “‘counsel
made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.’” See State
v. Pote, 2003 WI App 31, ¶15, 260 Wis. 2d 426, 659 N.W.2d 82 (citation
omitted). To prove prejudice, Adams must show “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.” See Strickland, 466 U.S.
at 694. Adams
must satisfy both the deficiency and the prejudice components of the test to be
afforded relief. State v. Allen, 2004 WI
106, ¶26, 274 Wis.
2d 568, 682 N.W.2d 433. We may choose to
examine either component first. See Pote,
260 Wis. 2d
426, ¶14. If Adams’s
showing is inadequate on one, we need not address the other. See
id.
¶21 The circuit court denied Adams’s
claims of ineffective assistance of counsel without conducting a hearing.
Whether a defendant’s postconviction motion alleges
sufficient facts to entitle the defendant to a hearing for the relief requested
is a mixed standard of review. First, we
determine whether the motion on its face alleges sufficient material facts
that, if true, would entitle the defendant to relief. This is a question of law that we review de
novo. If the motion raises such facts,
the circuit court must hold an evidentiary hearing. However, if the motion does not raise facts
sufficient to entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is
not entitled to relief, the circuit court has the discretion to grant or deny a
hearing.
Allen, 274 Wis. 2d 568, ¶9
(citations omitted).
¶22 Adams asserts that his trial
counsel should have called Maull as a defense witness to testify that Vogelmann
was at Mike’s Huh Tavern on April 2, 2004.
Adams claims that this testimony was necessary to support the theory of
defense of others and to corroborate Adams’s
own testimony. We agree with the circuit
court that Adams has not established any
prejudice from the omission of Maull’s proposed testimony.
¶23 First, the circuit court did not instruct the jury regarding defense
of others. Indeed, the record reflects
neither a request nor a basis for such an instruction. Adams had a privilege to use deadly force in
defense of Vogelmann only if Adams reasonably
believed that the force was necessary to prevent actual or imminent harm to her.
See
Wis JI—Criminal 830. As the circuit court observed, “there was no
evidence presented of any threat to [Vogelmann] at all.”
Because Maull’s proposed testimony would
not have furthered any viable theory of defense, actual or potential, Adams was not prejudiced by the loss of the evidence. See State
v. Keeran, 2004 WI App 4, ¶¶17, 20-21, 268 Wis. 2d 761, 674 N.W.2d 570
(defendant not prejudiced by failure to offer additional evidence when that
evidence does not support a viable defense).
¶24 Second, the circuit court characterized Maull’s testimony for
the State as “confusing” and “implausible.”
It discussed the timing of Maull’s belated reports that the victim had a
gun and observed that “[Maull’s] testimony left the distinct impression that he
was lying.” The circuit court’s
credibility assessment is a factual finding to which we owe deference unless it
is clearly erroneous. See State v. Thiel, 2003 WI 111, ¶23,
264 Wis. 2d
571, 665 N.W.2d 305. The court’s
conclusion here is not clearly erroneous.
In fact, Adams’s counsel addressed
Maull’s lack of credibility in closing argument: “[i]s Mr. Maull a liar? Absolutely.
Absolutely. There is no doubt in
this world.” In light of Maull’s lack of
credibility as a witness for the State, counsel’s failure to recall him as a
defense witness does not undermine our confidence in the outcome of the trial.
¶25 Third, Adams has not
identified any gap in the evidence that Maull’s testimony would have
filled. Two witnesses testified that
Vogelmann was in the tavern on the night of the shooting: Adams himself, and Hnanicek, a State’s
witness. Adams
does not demonstrate that a second corroborating witness, particularly a
witness who lacked credibility, was necessary to ensure a reliable trial
outcome.
¶26 Adams also claims that his
trial counsel was ineffective in failing to call Conley as a defense witness. According to Adams’s
proffer, Conley saw two silhouettes standing outside of the tavern before the
shooting, “assumed” that the figures were Hnanicek and Hayes, and “believed”
that their motions indicated an argument with a third, unseen individual. We agree with the circuit court’s assessment
of this proposed testimony as nothing more than Conley’s suppositions. As such, the proffered testimony was too
inconclusive and speculative to have probative value. See State v.
Schael, 131 Wis. 2d
405, 412, 388 N.W.2d 641 (Ct. App. 1986).
Counsel’s failure to offer Conley’s testimony therefore does not
undermine our confidence in the outcome of the proceedings. See Strickland,
466 U.S.
at 694.
¶27 Adams did not establish a
reasonable probability that the result of the trial would have been different
had the jury heard the evidence proffered in the postconviction motion. Therefore, the circuit court did not err in
concluding that a hearing on Adams’s claims
was unnecessary. Accordingly, we affirm
the judgment and order of the circuit court.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
(2005-06).