COURT OF APPEALS
DECISION
DATED AND FILED
December 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 II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Tion Charles Dallas,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Waukesha County: Linda
M. Van De Water, Judge. Affirmed.
Before
Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Tion Charles Dallas appeals from
a judgment of conviction of burglary and from an order denying his motion for
postconviction relief. He challenges the
trial court’s handling of questions and a request for testimony from the jury
during deliberations and argues that his trial counsel was ineffective for not
opposing the introduction of other act evidence with evidence that the other
act was not unique. We reject his claims
and affirm the judgment and order.
¶2 On the morning of January 30, 2004, a gas station clerk
discovered that the station had been burglarized during the night. The store was ransacked, inside security
cameras were destroyed, and phone and data lines had been cut. Among the merchandise strewn about the store
the police found a piece of beef jerky with bite marks in it. The DNA profile from the beef jerky matched Dallas’s profile. Dallas
was arrested and charged with burglary.
¶3 Before trial the prosecution sought to admit the
circumstances of Dallas’s involvement in a burglary
that occurred March 1, 2004, at a Ritz Foods store in Milwaukee county. The other act evidence was offered for the
purpose of identification since the Ritz Foods burglary involved a similar
business, time of day, method of entry, items taken, and manner in which the
store was ransacked. The prosecution
argued that the similar circumstances of the crimes are unique to Dallas. Defense counsel argued that the circumstances
were not unique at all and that most burglaries of convenience stores take
place during overnight hours, involve gaining entry by the use of certain
tools, result in the cutting of surveillance wires, and exhibit a certain
amount of ransacking of the store. The
circuit court granted the prosecution’s motion.
Dallas argues that to contradict the prosecution’s argument that the
circumstances of the burglary were unique to him trial counsel should have
introduced evidence at the motion hearing that a burglary ring of thirty to
forty people was committing area burglaries using the same methods.
¶4 A claim of ineffective assistance of counsel requires the
defendant to show both that counsel’s representation was deficient and that the
deficiency was prejudicial. State
v. Cooks, 2006 WI App 262, ¶33, 297 Wis. 2d 633, 726 N.W.2d 322. Appellate review of an ineffective assistance
of counsel claim requires us to uphold the trial court’s findings of fact
unless they are clearly erroneous. Id.,
¶34. The ultimate determination of
whether the attorney’s performance falls below the constitutional minimum is a
question of law subject to our independent review. Id.
¶5 In order to establish deficient performance, a defendant must
establish that counsel’s conduct falls below an objective standard of
reasonableness. Id., ¶33. As to prejudice, the 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. Id. If we conclude on a threshold basis that the
defendant could not have been prejudiced by trial counsel’s performance, we
need not address whether such performance was deficient. See State v.
Kuhn, 178 Wis.
2d 428, 438, 504 N.W.2d 405 (Ct. App. 1993).
Here we move directly to the second prong of the test because we
conclude that Dallas
could not have been prejudiced by his trial counsel’s performance at the
pretrial motion hearing.
¶6 Trial counsel testified that she was aware of the burglary
ring and that she did not offer evidence about it because Dallas was considered a member of the
ring. A Milwaukee
county detective confirmed that Dallas
was an identified member of the burglary ring.
Even at the pretrial motion hearing the circuit court recognized that
the pattern of both crimes was the work of a burglary ring: “[C]learly, that is an imprint of the
defendant and his cohorts as to how these burglaries are committed.” Had trial counsel established the existence
of the burglary ring, evidence of the Ritz Foods burglary in which Dallas’s involvement was
confirmed was no less probative as to his identity or participation in the
charged offense. The burglary ring and Dallas’s confirmed
membership in the ring strengthens the probative value of the other act evidence. Thus, evidence of the burglary ring would not
have changed the ruling on the admission of the circumstances of Dallas’s Ritz Foods
burglary. Further, the DNA matching evidence confirmed Dallas’s presence at the
charged burglary even if it is considered the work of the burglary ring. Dallas’s
trial counsel was not constitutionally deficient at the pretrial motion hearing.
¶7 During deliberations the jury sent out five written
questions:
1. Residence
of Tion Dallas at the time?
2. Where
was Tion Dallas employed?
3. Does
Tion Dallas have an alibi for the night of the burglary?
4. We
want written testimony of Habush [defense counsel] cross of Detective Cybell.
5. How
can we interpret Ritz Foods burglary?
The trial court and the parties
agreed that in response to question five the jury was to be advised to re-read
the instructions about the use of other act evidence. The trial court and the parties also agreed
that the jury was to be told that no answer could be provided to questions one,
two and three. With respect to the
request for the written testimony, defense counsel indicated no objection to
reading to the jury a specific portion of the detective’s
cross-examination. The trial court
disapproved of that approach as highlighting one specific portion of the
testimony in what was only a one-day trial.
In response to the questions a note went back to the jury:
The Court is unable to give you specific answers to
your questions. You must rely upon your
collective memories, notes, recollection of testimony you heard, and exhibits
admitted as evidence in this case. You
should also rely upon the written instructions as given to you by the court and
may refer to them in your deliberations.
¶8 Dallas
attacks the trial court’s response to the jury on two fronts. He first argues that based on the jury’s
questions about his residence, employment and alibi, the trial court erred in
not instructing the jury that he had a right not to testify and that the
absence of evidence on those inquiries should not raise an inference of guilt. With respect to the jury’s request for the
written cross-examination of the detective, Dallas argues that the trial court should
have read the detective’s cross-examination to the jury.
¶9 The jury was instructed that Dallas had an absolute constitutional right
to testify and that his decision not to testify could not influence the
verdict. It was also instructed that a
criminal defendant is presumed innocent and is not required to prove
innocence. Dallas contends that the jury’s questions
about his residence, employment, and alibi demonstrated that the jury
misunderstood his constitutional right to remain silent. He argues that the trial court did not do
enough to clarify the law on that point.
See
Bollenbach
v. U.S., 326 U.S.
607, 612-13 (1946) (“[w]hen a jury makes explicit its difficulties a trial
judge should clear them away with concrete accuracy.”).
¶10 Because the jury had already been instructed about Dallas’s right to remain
silent, the issue is whether the trial court should have re-instructed the
jury. The trial court has broad
discretion in deciding whether to re-instruct the jury. State v. Hubbard, 2008 WI 92, ¶29,
__ Wis. 2d
__, 752 N.W.2d 839 (WI Jul. 15, 2008) (No. 2006AP2753). In light of the immediate agreement between
the parties that the three questions could not be answered, there was no
discussion about the need to re-instruct the jury about Dallas’s right to remain silent. However, the record supports the
discretionary decision made but not explained.
See State v. Alsteen, 108 Wis. 2d 723, 728, 324 N.W.2d 426 (1982)
(“The failure of the trial court to set forth its reasoning requires us to
independently review the evidence to determine whether it supports the trial
court’s decision.”). The jury was given
a set of the instructions and those instructions fully and properly stated the
law with respect to a defendant’s right to remain silent. Additional language further explaining the
right to remain silent could have highlighted the missing testimony the jury
thought important to its decision. Dallas
does not suggest what else should have been said. The trial court did not erroneously exercise
its discretion in not providing new information when the instructions given
were adequate. See
State v.
Simplot, 180 Wis.
2d 383, 404-05, 509 N.W.2d 338 (Ct. App. 1993) (when the original instructions
are legally sound and sufficient to satisfy the question posed by the jury it
is proper to re-read the original instruction).
It was proper for the trial court to refer the jury back to those
instructions. See Hubbard, 2008 WI 92, ¶57
(trial court judge “could have exercised his discretion by instructing the jury
to re-read the jury instructions in their possession”).
¶11 When a jury requests to review testimony “‘the jury has a right
to have that testimony read back to it, subject to the discretion of the trial
judge to limit the reading.’” State
v. Anderson, 2006 WI 77, ¶83, 291 Wis. 2d 673, 717 N.W.2d
74 (quoted source omitted). The trial
court’s refusal to read testimony to the jury is reviewed for an erroneous
exercise of discretion. Id. The trial court properly exercises it
discretion when it applies the correct legal standard and uses a demonstrated
rational process to reach a reasonable conclusion. See id. In deciding whether to fulfill the
jury’s request the court should consider “whether the evidence will aid the
jury in the proper consideration of the case, whether the evidence could be subjected
to improper use by the jury, whether a party will be unduly prejudiced if the
jury is allowed to view the evidence again, and whether the deliberations will
be unduly extended by the circuit court’s reading lengthy testimony.” Id.,
¶93.
¶12 The trial court expressed its concern that reading the entire
cross-examination of the detective would unduly emphasize that testimony. It also observed that it was a very short
trial (less than a day long) and the jury should have a fresh recollection of
the testimony it heard earlier that day.
It is not an erroneous exercise of discretion to place more weight on
the risk of undue emphasis than other factors.
Overemphasis of selected testimony is a legitimate concern. Id.,
¶¶104-05. We conclude that based on the
combination of the very short trial and the risk of overemphasis the trial
court properly exercised its discretion in denying the jury’s request to review
the detective’s cross-examination.
¶13 Even if the refusal to read the testimony to the jury was
error, we are not persuaded that Dallas
was prejudiced. “The test for harmless
error is whether there is a reasonable possibility that the error contributed
to the conviction. The conviction must
be reversed unless the court is certain the error did not influence the
jury.” State v. Sullivan, 216 Wis. 2d 768, 792, 576
N.W.2d 30 (1998) (citations omitted). Dallas merely summarizes
the detective’s testimony as touching on “central issues” in the case including
the initial investigation of alternate suspects, the investigation at the crime
scene, and the location of the beef jerky.
He does not point to any particular portion of the cross-examination
that would have influenced the jury to acquit.
Indeed, at the postconviction motion hearing the trial court observed
that on cross-examination the detective provided a solid and valid answer to
the areas of inquiry suggesting some other perpetrator or explanation for Dallas’s DNA being located
at the scene. We are convinced that the
failure to read the detective’s cross-examination to the jury did not
contribute to the conviction.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.