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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Manuel R. Perez, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 FINE, J. Manuel R.
Perez appeals a judgment entered after a jury convicted him of conspiracy to
deliver more than forty grams of cocaine, see
Wis.
I.
¶2 Perez was part of a drug-trafficking operation involving many
people and businesses. One of the
initial targets of the investigation was Perez’s brother-in-law, Samuel
Caraballo. As part of the investigation,
a City of
¶3 The trial court approved the wiretap and, as a result of the investigation, the State charged over thirty defendants, including Perez, with various counts of drug trafficking and conspiracy to traffic drugs. One of Perez’s co-conspirators, Jeffrey House, sought suppression of evidence from the wiretap. Perez “adopted” the motion, which argued that the order for the wiretap was unlawful because it authorized wiretaps for crimes not enumerated in Wis. Stat. § 968.28 (application for court order to intercept communications). The trial court denied the motion.[3]
¶4 At the trial, the State offered Detective Gerald Stanaszak, the lead investigator in the case, as an expert in “narcotics investigations, large-scale drug conspiracies.” Stanaszak testified, among other things, about the intercepted telephone conversations, including the meaning of the various narcotics code-words used in the conversations.
¶5 Caraballo also testified. Before the trial, Caraballo gave approximately five statements to Stanaszak in which he told Stanaszak that Perez had repeatedly provided him with cocaine. Caraballo testified at the trial, however, that he never dealt cocaine with Perez. The State recalled Stanaszak, who recounted to the jury Caraballo’s statements implicating Perez.
¶6 As we have seen, the jury found Perez guilty of conspiracy to
deliver more than forty grams of cocaine.
Perez sought a new trial, claiming, among other things, that his trial
lawyer was ineffective. The trial court
denied Perez’s motion without a hearing authorized by State v. Machner, 92
II.
A. Ineffective assistance.
¶7 Perez claims that his trial lawyer was ineffective because the lawyer: (1) did not object when Stanaszak allegedly gave improper opinion testimony; (2) did not object to what Perez alleges are inaccurate jury instructions; and (3) did not properly impeach Caraballo’s testimony. In related claims, Perez contends that the trial court violated his due-process rights when it: (1) admitted Stanaszak’s alleged opinion testimony; and (2) improperly instructed the jury. Because Perez’s trial lawyer did not object to these matters, we review them as part of Perez’s ineffective-assistance-of-counsel claims. See Wis. Stat. § 805.13(3) (failure to object to proposed jury instructions or verdict waives any error); Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (unobjected-to error must be analyzed under ineffective-assistance-of-counsel standards, even when error is of constitutional dimension); State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 41–42 (in the absence of an objection we address waived issues under the ineffective-assistance-of-counsel rubric).
¶8 A defendant claiming ineffective assistance of counsel must
establish that: (1) the lawyer was
deficient; and (2) the defendant suffered prejudice as a result. See Strickland v. Washington, 466
¶9 Perez claims that his trial lawyer was ineffective because he
did not object when Stanaszak allegedly gave improper opinion testimony. He concedes that Stanaszak properly explained
the meaning of the code words, see United States v. Farmer, 543 F.3d
363, 370 (7th Cir. 2008) (“narcotics code words are an appropriate subject for
expert testimony”), but contends that Stanaszak exceeded the scope of his
expertise when he allegedly gave his opinion about the general meanings of the
conversions and facts of the case, see United States v. Dukagjini, 326
F.3d 45, 50, 54–55 (2d Cir. 2003) (case agent and expert on narcotics code
words whose “conclusions appear to have been drawn largely from his knowledge
of the case file and upon his conversations with co-conspirators, rather than
upon his extensive general experience with the drug industry … bolster[ed] …
the testimony of the cooperating co-defendants and … imping[ed] upon the
exclusive function of the jury”). This
claim is inadequately briefed. Perez
does not point to the specific testimony to which his lawyer should have
objected and explain how or why that testimony improperly conveyed Stanaszak’s
personal beliefs about the case. We are
thus unable to evaluate whether Stanaszak’s testimony was improper, and, if
improperly admitted, why its admission was not harmless error. See id., 326 F.3d at 61–62 (evidentiary
errors may be harmless); see also Wis.
¶10 Perez next contends that his trial lawyer should have objected
to what he alleges are inaccurate jury instructions. He argues that the instructions were
inaccurate because the trial court did not instruct the jury that it had to
find beyond a reasonable doubt that the cocaine weighed more than forty
grams. See
¶11 Whether jury instructions violate due process is a question of
law that we review de novo. Pettit, 171
Relief is not warranted unless the appellate court is “persuaded that the instructions, when viewed as a whole, misstated the law or misdirected the jury” in the manner asserted by the challenger. Where a criminal defendant claims that the jury instructions violated constitutional due process, the issue is whether there is a reasonable likelihood that the jury applied the instruction in a way that violates the defendant’s rights. In making that assessment, we consider the challenged portion of the instructions in context with all other instructions provided by the trial court.
State
v. Foster, 191
¶12 The jury instructions and the verdict forms fully apprised the
jury of the law. See Fischer v. Ganju, 168
We, the jury, find the defendant, Manuel Perez, guilty of Conspiracy to Deliver a Controlled Substance - Cocaine, as charged in the Information.
If you find the defendant guilty, you must answer the following question “yes” or “no”:
Was the amount of cocaine, including the weight of any other substance or material mixed or combined with it, more than 40 grams?
(Capitalization in original; emphasis added.) The jury used this form and answered the question “yes.” This information as a whole adequately informed the jury that it had to find beyond a reasonable doubt that the cocaine weighed more than forty grams. Moreover, the evidence at trial showed that the police found more than 2,500 grams of cocaine in a co-conspirator’s house. Accordingly, Perez has not shown prejudice.
¶13 Perez also claims that his trial lawyer did not properly impeach Caraballo. In addition to what he told Stanaszak, Caraballo made two statements to the police shortly after he was arrested. In those statements, Caraballo did not mention Perez, except to say that Perez owned a local restaurant. Perez claims that his trial lawyer should have introduced those statements at the trial to impeach Caraballo. This claim is also inadequately briefed.
¶14 A witness’s statement that is consistent with his or her trial
testimony is admissible if, as material, it is “offered to rebut an express or
implied charge against the declarant of recent fabrication or improper
influence or motive.” Wis.
¶15 In a related claim, Perez contends that the trial court erred
when it denied his postconviction motion without a Machner hearing. In light of our ruling that there is no merit
to Perez’s ineffective-assistance claims, the trial court properly exercised
its discretion when it denied Perez’s motion without a hearing. See State v. Allen, 2004 WI 106, ¶9,
274
B. Plain error/interest of justice.
¶16 Perez argues that, as an alternative to his
ineffective-assistance claims, he is entitled to a new trial under the plain-error
doctrine or in the interest of justice. See Wis.
C. Wiretap.
¶17 Perez also claims that the trial court should have suppressed the
evidence from the wiretap because the wiretap order authorized the interception
of communications for crimes not specifically enumerated in Wis.
The order included both enumerated and non-enumerated offenses, and it contained sufficient probable cause for the enumerated offenses. Further, the evidence obtained by wiretap was for enumerated offenses, and charges were brought only for enumerated offenses. Thus, the failure does not conflict with the statutory objectives of protecting privacy and limiting wiretapping to situations clearly calling for the use of such an extraordinary device.
House,
2007 WI 79, ¶61, 302
¶18 We affirm.
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.
[1] The Honorable Joseph R. Wall presided over the trial and entered the judgment of conviction. The Honorable Kevin E. Martens issued the order denying the postconviction motion.
[2]
Perez has sprinkled his brief on appeal with tangential assertions that are not developed. We do not address these matters. See
State
v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (
[3] In the motion, House also claimed that extensions for the wiretap did not receive approval from the district attorney and attorney general. See Wis. Stat. §§ 968.28, 968.30. The trial court granted the motion to exclude the evidence obtained during the extensions.
[4]
If you find the defendant guilty, you must answer the following question(s) “yes” or “no”:
Was the amount of (name controlled substance), including the weight of any other substance or material mixed or combined with it, more than (state amount which determines the penalty)?
Before you may answer this question “yes,” you must be satisfied beyond a reasonable doubt that the amount was more than (state amount).
(Footnotes omitted; underlining in original.)
[5]
(4) Statements which are not hearsay. A statement is not hearsay if:
(a) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
….
2. Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
[6] Wisconsin Stat. § 968.28 provides, as material:
The authorization [for a wiretap] shall be permitted only if the interception may provide or has provided evidence of the commission of the offense of homicide, felony murder, kidnapping, commercial gambling, bribery, extortion, dealing in controlled substances or controlled substance analogs, a computer crime that is a felony under s. 943.70, or any conspiracy to commit any of the foregoing offenses.