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COURT OF APPEALS
DECISION
DATED AND FILED
February 3, 2009
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.
Rahim Abdul Jackson,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: william
sosnay, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 BRENNAN, J. Rahim Abdul Jackson
appeals from a judgment entered after a jury found him guilty of five counts of
armed robbery with threat of force as a party to a crime, contrary to Wis. Stat. §§ 943.32(1)(b) & (2)
and 939.05 (2005-06).
He also appeals from an order denying
his postconviction motion alleging ineffective assistance of counsel. Jackson
claims: (1) his trial counsel
provided ineffective assistance by failing to call two alibi witnesses; and (2) he
is entitled to a new trial in the interests of justice. We reject both contentions and affirm the
judgment and order.
BACKGROUND
¶2 The charges in this case arose from multiple armed robberies
which were charged in one criminal complaint. The State filed an amended information before
trial charging Jackson
with five counts arising out of two armed robberies. Counts one through four pertained to an armed
robbery of four victims on October 26, 2005 at 7:30 p.m. at Lores Bar & Grill
in Milwaukee. Four masked persons entered the tavern, one
of whom was brandishing a handgun. Owner
Harish Mehta and patrons Jason Rick, Theresa Thompson and Leroy Anderson were
robbed.
¶3 At 8:08 p.m., the ATM card taken from Rick was used at
an ATM machine near Jack’s Liquor store.
Surveillance tape from the liquor store showed Paul Anthony Bates and
Jackson attempting to withdraw cash using Rick’s stolen ATM card. Bates was brought in for questioning and
admitted committing the robbery. He told
police that Jackson and two other accomplices were involved. Jackson
admitted that he was on the liquor store video trying to use the stolen ATM,
but denied committing the robbery.
¶4 The fifth count arose out of the second robbery which
occurred on October 31, 2005 at approximately 9:18 p.m. at the Corner
Pub. Bartender David Beix told police
that four, black, masked males entered the bar and one had a handgun. They stated: “It’s a robbery” and demanded the money from
the cash register. Beix opened the cash
register and turned over the money to the robbers. Four patrons in the tavern were also
robbed. When the police questioned Bates
about this robbery, he admitted that he and Jackson and the same two
accomplices from the first robbery also committed this robbery.
¶5 Bates, Jackson and a third defendant were charged. Jackson
pled not guilty. Bates worked out a plea
agreement with the prosecutor and agreed to testify against Jackson.
Jackson
filed a notice of intent to call alibi witnesses listing three names: Shauna Coleman, Jessica Williams and Emery
Hines. After several adjournments, the
case was presented to a jury on October 30, 2006 through November 1,
2006. At the close of the State’s case,
defense counsel advised the court that no alibi witnesses would be called. Jackson
did not testify and no witnesses were called by the defense.
¶6 The jury returned a guilty verdict on all five counts. Jackson
was sentenced and judgment was entered.
Subsequently, he filed a postconviction motion asserting that his trial
counsel provided ineffective assistance by failing to call any alibi witnesses.
The trial court conducted a Machner
hearing. At the hearing, the trial court heard
testimony from Jackson’s
trial counsel (Louis Epps) and from two alibi witnesses, Coleman and Williams,
who testified only as to the second robbery date. At the conclusion of the hearing, the trial
court found that Epps’s account was more credible than the witnesses on the
content of the proposed alibi trial testimony, on his reasons for not calling
the two witnesses and on his consultation with Jackson about the decision not to call the
alibi witnesses. The trial court ruled
that Epps’s decision not to call alibi witnesses was a reasonable strategic
decision and therefore his representation was not deficient. The trial court also found that even if the
omission constituted deficient performance, it was not prejudicial—that the
result of the trial would have been the same even if the alibi witnesses had
testified. This appeal followed.
DISCUSSION
A. Ineffective Assistance of Counsel.
¶7 Jackson
asserts that his trial counsel provided ineffective assistance by failing to
call any alibi witnesses on his behalf.
This claimed error applies to the October 31, 2005 incident only
because the two witnesses testified only with regard to that date. Jackson’s
argument is that the alibi witnesses were critical to his defense because they
contradicted, in part, the main witness against him, Bates. Bates admitted committing the robberies at
both taverns, but testified at trial that Jackson
was part of the foursome in both robberies. There was no physical evidence connecting Jackson to the Lores Bar & Grill
robbery, although the video showed him using the ATM card obtained in the
robbery right after it. The defense
theory was that Bates falsely implicated Jackson
in exchange for a better deal for himself.
Thus, Jackson
argues that guilt or acquittal in his case depended solely on whether the jury
believed Bates. Jackson
argues that if alibi witnesses were called to testify, the jury would have had
a basis to conclude that Bates was lying about Jackson being involved. The State responds that trial counsel’s
decision not to call alibi witnesses was a reasonable trial strategy and
therefore did not constitute ineffective assistance. We agree with the State.
¶8 To sustain a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and that
counsel’s errors were prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); State v. Sanchez, 201 Wis. 2d 219, 236,
548 N.W.2d 69 (1996). A court need
not address both components of this inquiry if the defendant does not make a
sufficient showing on one. Strickland,
466 U.S.
at 697.
¶9 An attorney’s performance is not deficient unless he or she
“made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.
at 687. To satisfy the prejudice prong,
defendant must demonstrate that counsel’s deficient performance was “so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. In other words, there must be a showing 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.
at 694.
¶10 Whether
counsel’s actions constitute ineffective assistance is a mixed question of law
and fact. State v. Pitsch, 124 Wis. 2d 628,
633-34, 369 N.W.2d 711 (1985). “The
trial court’s determinations of what the attorney did, or did not do, and the
basis for the challenged conduct are factual and will be upheld unless they are
clearly erroneous.” State v. Johnson, 133 Wis. 2d 207, 216,
395 N.W.2d 176 (1986) (citation omitted).
The ultimate conclusion, however, of whether the conduct resulted in a
violation of defendant’s right to effective assistance of counsel is a question
of law for which no deference to the trial court need be given. State v. Harvey, 139 Wis. 2d 353, 376,
407 N.W.2d 235 (1987).
¶11 Here,
the alleged error was Epps’s decision not to call Coleman or Williams to
testify. Jackson argues there was no good reason not
to call them and Epps’s reasons as testified to at the Machner hearing were
“mistaken” memories of what the witnesses would have testified to. Epps testified at the Machner hearing that he
made a specific strategic decision not to call these alibi witnesses after the
State finished presenting its case. His
reason was based on his success in the cross-examination of Bates and the
weakness of the proposed alibi witnesses.
¶12 The
theory of defense was that Bates implicated Jackson to gain consideration for himself. The strategy was to impeach Bates. Epps testified that his cross-examination of
Bates had “shredded him sufficiently that we could argue to the jury that they
could not place Mr. Jackson [at the crimes] based on [Bates’s] word alone.” During the cross-examination, Epps impeached
Bates on inconsistencies in his statement and on Bates’s admission that he had
a gun only after DNA came back linking the gun to Bates and not Jackson. Prior to the DNA results, Bates claimed that Jackson was the only one
with a gun.
¶13 In
the heat of the trial, Epps believed his cross-examination of Bates had gone
well and the alibi witnesses presented problems. He remembered that they had been vague as to
times and they placed Jackson
in the company of Bates which Epps did not want to do. So, he made a strategic decision to forgo
calling the alibi witnesses to avoid taking the risk such testimony could
bring. In addition, Epps testified:
The other problem that came up
was that they placed Mr. Bates at a location outside of Mr. Jackson’s
house and that they indicated that Mr. Bates had been there and that they
had left. They had been there with Mr. Jackson,
that Mr. Bates had come there, that they had left and that when they left,
Mr. Bates was still outside of Mr. Jackson’s house, and that caused
me some concern because I felt at the time that Mr. Bates had been damaged
enough in cross-examination that his credibility was in doubt enough that I
didn’t want to do anything that would have given I guess any type of support or
corroboration to his argument that he was with Mr. Jackson on that
particular date.
Epps, an experienced criminal
defense lawyer who had represented individuals charged with felonies for the
past thirty years, felt it would not be in the best interests of his client to
call the alibi witnesses.
¶14 Epps further testified at the Machner hearing that he
discussed the decision to forgo calling the alibi witnesses with Jackson, Jackson understood the decision
and did not object. Epps also testified
that ultimately the decision would be Jackson’s
and if “he had insisted that I call them, then I would have called them. But I certainly would have told him why I
didn’t think it was a good idea at the time.”
¶15 Coleman’s testimony at the Machner hearing was somewhat
different than Epps recalled her statement at the time of trial. Coleman testified at the Machner hearing that she
was Jackson’s
girlfriend and pregnant with his child at the time the second robbery
occurred. She told the court that on
October 31, 2005, her cousin, Williams, came and picked her up and they
drove to Jackson’s
home about 7:00 or 7:30 p.m. She
knew it was not earlier than 7:00 p.m. because she had already eaten
dinner. The three then went to a nearby
Wal-Mart where she browsed for baby clothes and Jackson purchased clippers. After that, they went through the drive-thru
at Checkers restaurant to get some food and parked near Jackson’s house. Coleman believes it was about 9:00 p.m.
at this point in time. The girls stayed
in the car to eat and Jackson
went inside his home to eat. Some time
later, Jackson
came back out to the car. At this time,
Coleman and Jackson argued, culminating in the girls leaving Jackson at about 10:30 p.m. When questioned by the court, Coleman
admitted that she was not 100% sure that she spoke with defense investigators
about the specific date of October 31, 2005, suggesting some lack of
certainty as to the date. She testified
she had come to the trial and talked to Epps but that she had not seen Williams
there.
¶16 The
second alibi witness, Williams, testified that Jackson and Coleman came to pick
her up on October 31, 2005 at about 4:00 or 5:00 p.m. and that the
three drove around to different friends’ homes, including one home where they
stopped, went in and watched television with three other people present. Then they left, drove around some more, went
through the drive-thru at Checkers restaurant and parked to eat. Williams stated that they did not park by Jackson’s house and that
the argument between Coleman and Jackson took place in the car. She stated the two dropped her off at her home
sometime after 9:00 p.m. Williams
testified she never came to court for the trial, but had been interviewed
before trial by a person who was not from the police.
¶17 Jackson’s
appellate counsel argued at the Machner hearing that Coleman’s and
Williams’s testimony at that hearing showed that Epps never interviewed
Williams on the day of trial and that he was mistaken in his testimony that
they were vague as to time and that they placed Jackson in the company of
Bates. Accordingly, Jackson argues that Epps was wrong not to
call them.
¶18 The first part of the analysis of the ineffective claim then is
whether the trial court’s factual findings at the Machner hearing were
clearly erroneous. The court found Epps
credible on his memory of what Williams and Coleman would have testified to at
the time of trial and as to whether Epps consulted with Jackson on the decision not to call the
witnesses. The trial court did not find the discrepancy as to whether Epps met
face-to-face with Williams during the trial significant with respect to the
strategic decision at issue in this case, but rather attributed it to the
passage of time between the trial and the Machner hearing. The trial court, as the factfinder of the Machner
hearing, found Epps’s testimony to be more credible.
¶19 Issues
such as inconsistencies in the testimony or contradictory evidence are for the
trier of fact to resolve. See State v. Perkins, 2004 WI App 213, ¶15, 277 Wis. 2d 243, 689 N.W.2d 684. The trial court was in the best
position to determine the credibility of the witnesses having seen and heard
them all. The trial court found Epps the
most believable on both points. This
finding is not clearly erroneous from this record. The trial court, which was the same court that
presided over Jackson’s
trial and personally heard all the trial witnesses testify, ruled:
Mr. Epps is known to this court as being a very
credible attorney. He obviously has
extensive experience in representing criminal defendants, and the court recalls
his performance in representing the defendant specifically in this trial. The court felt that he was very effective in
his representation of the defendant at trial.
The court did hear the cross-examination of the witnesses.
¶20 The next part of the ineffective assistance analysis is whether
the trial court’s legal conclusions were correct. The trial court rejected Jackson’s contention that there was no good
reason not to call the witnesses. Instead,
the court found several “very obvious reasons” not to call Coleman or Williams
to testify:
Number one, [Epps] did testify
under oath … he does recall and did testify very vividly, and I believe
credibly, that she wasn’t certain as to the times and place and she was not
being specific. Now, months later
obviously she has testified today as to specific events and specific
times. However, the court did have the
opportunity to observe her as well, and I would note that one thing that stood
out, aside from the discrepancy in her testimony with Ms. Williams, …
that when asked questions regarding specific times and what happened on October 31st,
2005, she very visibly flushed in terms of her face. Her face turned very red to the court which
was evidence because I was only a few feet away from her. I noticed that not only in terms of her reaction,
but I did not feel that she was being entirely credible in terms of her
recitation of the events on October 31st, 2005, as specifically as to the
times and what they were doing … in this court’s opinion I did not think
she was being entirely credible.
… The fact alone that she
wasn’t specific as to the time and place at the time that he spoke to her,
which would have been on the date of the trial.
And I do believe and find his
testimony credible that he did discuss this with the defendant, and I believe
the record from the trial substantiates that, … Mr. Epps is an
experienced trial counsel. He’s
testified under oath. He discussed this
with Mr. Jackson, and quite frankly, this was a strategic decision on his part, …
based upon those factors he testified to including … the effective
cross-examination of Mr. Bates, the fact that the witness was not specific
as to the times, and the fact that it may have placed Mr. Jackson with Mr. Bates
on the evening of October 31st, 2005.
¶21 We agree with the trial court’s analysis. Based on the specific and credible testimony
Epps provided at the Machner hearing, we conclude that
the decision to not call alibi witnesses was a reasonable strategic choice and
does not constitute ineffective assistance of counsel.
¶22 At the time Epps made this decision, he was operating with the
belief that he had successfully impeached the State’s key witness. The alibi witnesses’ proposed testimony at the
time of trial placed Jackson
in the company of Bates, bolstering Bates’s credibility which Epps had just
worked to undermine. They were vague
about times and events. And finally,
Epps consulted with Jackson
on this strategy choice which was placed on the record.
¶23 In reaching this conclusion we recognize these cases are guided
by the principle set forth in Strickland, 466 U.S. at 690
“that counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.” In hindsight, we know now
that the jury found Bates’s testimony to be credible. Hindsight, however, is not the standard
governing our review: “one should not by
hindsight reconstruct the ideal defense.
The test of effectiveness is much broader and an accused is not entitled
to the ideal, perfect defense or the best defense but only to one which under
all the facts gives him reasonably effective representation.” State v. Harper, 57 Wis. 2d 543, 557,
205 N.W.2d 1 (1973). Here, Epps
provided Jackson
with reasonably effective representation.
The trial court, which personally observed Epps in his representation of
Jackson in this
case, noted: “The court felt that [Epps]
was very effective in his representation of the defendant at trial.” Thus, Jackson
not only received reasonably effective
representation, but very effective
representation.
¶24 Moreover, even if Epps would have elected to call an alibi
witness, and even if her testimony at trial would have been the same as she
offered at the Machner hearing, the trial court found that Coleman’s testimony
would not have changed the outcome of this case:
I do not find that the defendant was prejudiced or that
there was a reasonable probability that, but for Mr. Epps’ failure to call Ms.
Coleman, that the result of the proceeding would have been different. In fact, from what I heard this afternoon, I
believe that the jury may have come to an even sooner or easier decision than
they did.
¶25 We agree with the trial court’s assessment. Although Coleman offered testimony at the Machner
hearing that Jackson
was with her and Williams from 7:00 p.m. to 10:30 p.m. on October 31,
2005, she testified that he left her sight at 9:00 p.m. and went into his
house. Coleman testified he returned to
her sight in the car at some later, unspecified time. As an alibi for a 9:18 p.m. armed robbery
which occurred in close proximity to Jackson’s
home, this gap is critical. In addition,
the trial court found she was not a credible witness. Her story differed in many respect from
Williams’s and contained internal inconsistencies. Further, Coleman had an obvious bias and
motivation for offering Jackson
an alibi: She was pregnant with his
child and presumably did not want the father of her child to be in jail.
¶26 In its decision, the trial court focused more on Coleman’s
alibi testimony as the primary witness, but much of the same reasoning
discussed relative to Coleman applies to Williams as well. Her version was inconsistent in many respects
with Coleman’s, she was not specific with respect to times and she had Jackson dropping her off
at home some time around 9:00 p.m. which directly contradicts Coleman. These factors, together with Epps’s belief
that Williams would place Bates with Jackson on the night in question renders
Epps’s decision to not call her to testify a reasonable strategic decision and
consistent with the theory of defense at the time. The inclusion of the alibi witnesses’
testimony was not likely to create a different result for Jackson. Accordingly, we conclude there was no
prejudice to Jackson.
B. Interests of Justice.
¶27 Jackson
requests that we exercise our discretionary reversal power under Wis. Stat. § 752.35 on the basis
that the real controversy was not tried and the interests of justice demand he
be given a new trial so the jury could hear the testimony of Coleman. We are not convinced that exercising our
discretionary reversal power is appropriate in this case.
¶28 Wisconsin Stat. § 752.35 provides:
In an appeal to the court of appeals, if it appears
from the record that the real controversy has not been fully tried, or that it
is probable that justice has for any reason miscarried, the court may reverse
the judgment or order appealed from, regardless of whether the proper motion or
objection appears in the record and may direct the entry of the proper judgment
or remit the case to the trial court for entry of the proper judgment or for a
new trial, and direct the making of such amendments in the pleadings and the
adoption of such procedure in that court, not inconsistent with statutes or rules,
as are necessary to accomplish the ends of justice.
We will grant discretionary
reversals under this statute only “infrequently and judiciously.” State v. Ray, 166 Wis. 2d 855, 874, 481 N.W.2d 288 (Ct.
App. 1992). There is nothing in this record
warranting a discretionary reversal.
¶29 Jackson
argues that Coleman’s testimony was important and failing to present it to the
jury resulted in the real controversy not being decided. He cites State v. Ward, 228 Wis. 2d 301, 306, 596 N.W.2d 887 (Ct.
App. 1999) for the proposition that the real controversy has not been tried
when a “jury was erroneously not given the opportunity to hear important
testimony.” Such was not the case
here. We have concluded that the decision
constituted reasonable trial strategy and did not constitute ineffective
assistance of counsel. Thus, there is no
basis for us to conclude that the real controversy was not tried or that a new
trial is necessary in the interests of justice.
By the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.