|
COURT OF APPEALS DECISION DATED AND FILED November 4, 2008
David R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
|
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. |
|
|
Appeal No. |
|
|||
|
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
|
DISTRICT III |
|||
|
|
|
|||
|
|
|
|||
|
State of
Plaintiff-Respondent, v. Darryl L. Salters,
Defendant-Appellant. |
||||
|
|
|
|||
APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Darryl Salters appeals a judgment convicting him of sexual assault as a persistent repeater. He also appeals an order denying his postconviction motion in which he alleged ineffective assistance of trial counsel based on counsel’s failure to call seven witnesses. He argues: (1) he did not receive proper notice of the prior convictions that support the repeater enhancer; (2) his right to a jury trial was violated because the existence of the prior convictions was not determined by the jury; and (3) he was denied effective assistance of counsel. We reject these arguments and affirm the judgment and order.
BACKGROUND
¶2 Salters was convicted of sexually assaulting N.C., a prison food service employee. She testified that Salters sexually assaulted her in the basement of the kitchen area at the prison. He pushed her to the floor and sucked her breasts. She struck him, causing him to bleed from his mouth, and she cried out for help from a guard two stories above the basement. A guard responded. The guard testified that as he approached the elevator area, he heard N.C. yell, “He’s trying to rape me, please help.” When the guard unlocked the door, he observed N.C. with scratch marks on her arms and chest area, and her shirt was out of place with part of her shoulder showing. Salters’ shirt was also torn, his upper lip was bloody, he had scratch marks on his arms, and both of their shirts had blood stains. Salters also had scratch marks on his arms.
¶3 The defense contended the sexual contact was consensual, and N.C. cried rape when she feared her consensual sexual conduct would be discovered by a guard. Salters did not testify. However, another prisoner, Antron Kent, testified that N.C. and Salters had a “real friendly relationship.” He said Salters never got in trouble, and he was allowed to eat things other inmates were not allowed to eat. The jury convicted Salters of sexually assaulting N.C. and, based on Salters’ prior convictions for sexual assault of children, the court sentenced Salters as a habitual criminal to life imprisonment without the possibility of parole or extended supervision.
¶4 At the postconviction hearing, Salters identified three
additional inmates and four prison employees who he contends his trial counsel
should have called as witnesses. They
would have confirmed that N.C. was friendly and flirtatious with Salters, that
N.C. violated prison rules by touching their arms or shoulders, and by speaking
with Salters behind closed doors. They
would have testified N.C. did not appear traumatized after the assault. Salters’ trial attorney testified he did not
call one of the witnesses because the witness indicated he would not
testify. He also believed the proffered
testimony would not have been admitted and that it was cumulative to
¶5 N.C.’s co-workers would have testified that she violated prison rules by her friendly association with Salters. One fellow employee would have testified that N.C. did not appear to be traumatized after the incident. The trial court concluded that the testimony would not have been admissible because much of it was hearsay, irrelevant, and its minimal probative value was substantially outweighed by its prejudicial effect. The fellow employee’s assessment that N.C. did not appear traumatized was consistent with N.C.’s testimony that she attempted to appear “controlled” and “calm” even though she was “jittery inside.” The court concluded Salters’ trial counsel was not deficient and Salters suffered no prejudice from his counsel’s failure to call these witnesses.
DISCUSSION
¶6 Salters received adequate notice of the crimes the State
intended to use to establish he was a persistent repeat offender. The Information specified two counts of
second-degree sexual assault of a child and gave the dates the crimes were
committed and the dates of the convictions.
Salters complains that the State did not indicate the county in which
the offenses occurred. No law requires
the State to specify the county. An
allegation of habitual criminality should identify the nature of the offense
and the date of conviction.
¶7 Salters was not entitled to have the jury determine his
persistent repeater status. Penalty
enhancers based on previous convictions are not matters that must be submitted
to the jury.
¶8 Salters has not established ineffective assistance of trial
counsel for failure to call other inmates or prison employees. To establish ineffective assistance, Salters
must prove deficient performance and prejudice.
Strickland v.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.