COURT OF APPEALS DECISION DATED AND FILED December 30, 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 I |
|||
|
|
|||
|
|
|||
State of Plaintiff-Respondent, v. Andre M. Hicks, Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine, J. and Daniel L. LaRocque, Reserve Judge.
¶1 PER CURIAM. Andre M. Hicks appeals from a judgment of conviction for armed robbery, first-degree reckless injury, and being a felon in possession of a firearm, and from a postconviction order denying his motion to vacate the judgment and order a new trial.[1] The issue is whether trial counsel failed to investigate and present Hicks’s alibi defense, resulting in the jury finding him guilty. We conclude that trial counsel did not perform deficiently, and thus, did not provide ineffective assistance. Therefore, we affirm.
¶2 On August 21, 2004, Hicks was involved in a dice game; at about 7:30 p.m., several of the participants were shot and robbed. At trial, three of the witnesses testified that they have known Hicks for several years and each identified him as the perpetrator.
¶3 The jury found Hicks guilty of armed robbery, first-degree reckless injury, and possessing a firearm as a felon.[2] The trial court imposed a thirty-two-year aggregate sentence including a twenty-year aggregate period of initial confinement.
¶4 Hicks moved for a new trial on the basis of ineffective assistance of trial counsel for failing to investigate and present his alibi defense. The trial court summarily denied the motion. On appeal, this court reversed the postconviction order and remanded the matter for a Machner hearing. See State v. Hicks, No. 2006AP1907-CR, unpublished slip op. at 5 (WI App May 30, 2007). Following the Machner hearing, the trial court denied the motion. Hicks appeals.
¶5 Hicks’s ineffective assistance claim is that trial counsel failed to investigate and present an alibi defense, namely, that Hicks could not have committed the offenses charged because he was at a family picnic in a different part of the city at the time of the robbery and shootings. He identified the following people as helpful to his alibi defense, his relatives, Sheree, Michael and Tonya Watkins, and Robin Clark.[3]
¶6 At the Machner hearing, only Clark and
Hicks’s trial counsel testified.
¶7 To prevail on an ineffective assistance claim, the defendant
must show that trial counsel’s performance was deficient, and that this
deficient performance prejudiced the defense.
See Strickland v. Washington, 466
¶8 Hicks alleged that his trial counsel was ineffective for failing to contact these witnesses to support his alibi: Sheree, Michael and Tonya Watkins, and Robin Clark. We consider trial counsel’s testimony about each of them.
¶9 Although Hicks ultimately acknowledged that Sheree and Michael Watkins may not have been appropriate candidates to testify, he contends that they should have been interviewed because they would have provided further information about others at the family picnic who could have provided useful information to support Hicks’s alibi. Trial counsel testified that she asked her investigator to interview Sheree, despite her concern that Sheree could not be called as a defense witness because her car had blood in it that may have implicated Hicks in the crimes. Nevertheless, trial counsel testified that she did not recall nor did she receive any notes from her investigator about any contact with Sheree. Trial counsel also ultimately declined to talk to Michael Watkins because the prosecution’s theory was that Michael may have driven the car and waited for Hicks as Hicks committed the crimes; Michael was also currently in jail.
¶10 Hicks has not proven that trial counsel was ineffective for
failing to contact Sheree or Michael Watkins.
First, neither was a reasonably acceptable risk as an alibi witness
because each could also implicate Hicks.
See Strickland, 466
¶11 Tonya Watkins was the next potential alibi witness, and according to trial counsel, the “only” alibi witness Hicks told her about. Trial counsel sent a defense investigator to interview Tonya who told the investigator that “she went to a picnic with Mr. Hicks [and] that they left together sometime around 8:45.” Trial counsel testified that she intended to call Tonya as an alibi witness, but was unable to locate her. In response to questioning regarding her attempts to locate Tonya, trial counsel testified, “I made personal calls to Ms. Watkins where I left messages, and my investigator made at least four or five attempts to locate her as well.” The following exchange is trial counsel’s testimony in response to the following question by the prosecutor:
The prosecutor’s question: You could have … ask[ed] your investigator to personally serve T[o]nya Watkins with a subpoena and warn[] her that if you don’t come to court we are going to have the judge order you arrested to come to court; you could have done that?
Trial counsel’s response: That’s what we were trying to do, but we couldn’t find her. Every time the investigator would go to her house, nobody would answer the door, so she would leave cards and they wouldn’t get back to her.
Trial counsel diligently
attempted to compel Tonya to testify; that her attempts failed does not
constitute deficient performance. See McMahon, 186
¶12 Robin Clark was the only alibi witness who actually testified at the Machner hearing and, as we previously concluded, provided Hicks with an alibi. At the Machner hearing, however, trial counsel testified that “[u]ntil [she] read [Hicks’s postconviction] motions, [she] had never heard of Robin Clark.” That testimony is undisputed.
¶13 It is not objectively reasonable to require trial counsel to
interview an arguable alibi witness she “never heard of.” Trial counsel testified that she repeatedly
discussed and requested information about arguable alibi witnesses with Hicks,
whom she described as an active participant in his defense; trial counsel
testified that Hicks never identified or referred to
¶14 Trial counsel was well aware of the importance of an alibi
witness to Hick’s defense. She discussed
potential alibi witnesses with Hicks repeatedly, and requested that Hicks
provide her with names and leads of any potential witnesses. She pursued those leads. Hicks’s specific ineffective assistance
claims regarding Sheree, Michael and Tonya Watkins, and Robin Clark, each
fails. Consequently, Hicks has not shown
that his trial counsel was deficient. It
is therefore unnecessary to address the prejudice element of his ineffective
assistance claim. See Moats, 156
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).
[1] The
Honorable Karen E. Christenson presided over the jury trial, imposed sentence,
and entered the judgment of conviction.
The Honorable Daniel L. Konkol decided Hicks’s postconviction motion
after presiding over the Machner hearing, which is an evidentiary
hearing to determine trial counsel’s effectiveness.
[2] The jury found Hicks not guilty of attempted first-degree intentional homicide and two counts of first-degree reckless injury.
[3] Throughout the remainder of this opinion, we sometimes refer to Sheree, Michael and Tonya Watkins only by their first names, to avoid the confusion or redundancy of referring to them as Watkins, or by both their first and last names.