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COURT OF APPEALS
DECISION
DATED AND FILED
February 11, 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 II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Todd A. Johnston,
Defendant-Appellant.
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APPEAL
from judgments and an order of the circuit court for Ozaukee County: thomas
r. wolfgram, Judge. Affirmed.
Before Anderson,
P.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. In this appeal from four
convictions for second-degree recklessly endangering safety and the denial of
his postconviction motion, Todd Johnston challenges the assistance he received
from his trial counsel and the circuit court’s exercise of sentencing
discretion. We conclude that Johnston was not
prejudiced by his trial counsel’s representation, and the circuit court
properly exercised its sentencing discretion.
We affirm the judgments of conviction and the order denying Johnston’s postconviction
motion.
¶2 The jury convicted Johnston
of second-degree recklessly endangering the safety of Trisha Wagner, Scott
Martarona, George Russell and Ronald Berry.
The charges against Johnston
arose from an October 2004 bar fight that later moved outside. Martarona was in the bar with Berry and Russell; Johnston
was in the bar with Wagner. As a result
of the fight between them, the bartender ejected Johnston and Martarona. Berry and
Russell also left, and Johnston
told the bartender that he was going to kill the men. Shortly after Johnston
left the bar, the bartender heard yelling, looked outside and saw Johnston enter his
truck. The bartender observed Johnston drive toward the parking
lot. Martarona,
Berry, Russell and others were milling around
the entrance to the parking lot and jumped out of the way to avoid being hit by
Johnston’s
truck. Johnston
drove into the parking lot, reversed and backed into Berry’s truck. As he exited the parking lot, Johnston drove over the
curb toward Russell. To avoid being
struck by Johnston’s
truck, Russell grabbed the truck and held onto the hood for approximately five
seconds before he fell off.
¶3 Johnston
testified that after he left the tavern, he headed toward his truck. There, he encountered his attackers, and
another fight ensued. Johnston eventually entered his truck and
started to drive away, but he noticed that the truck was difficult to
maneuver. The truck’s handling
characteristics were consistent with a flat tire. He pulled into the parking lot because the truck
was not operating properly, and he felt he should not drive due to the amount
of alcohol he had consumed. He did not
see his attackers when he pulled into the parking lot. Thereafter, the attackers, Martarona, Russell
and Berry,
appeared alongside his truck and attempted to gain entry. Johnston
tried to exit the parking lot because he was afraid of the attackers, but his
exit was blocked by another vehicle. Johnston had difficulty maneuvering his truck out of the
parking lot, and while reversing, he struck Berry’s vehicle. He pushed Berry’s vehicle out of the way because
people were in front of his truck, hitting the hood, and trying to enter from
the driver’s side. As he was maneuvering
to leave the parking lot, Russell jumped in front of his truck and attempted to
climb onto the hood. Johnston then moved forward out of the
parking lot toward the police station. In
describing his injuries from the beatings, Johnston did not contend that the injuries
impaired his ability to function.
¶4 Officer Nye stopped Johnston
a few blocks from the parking lot. Johnston’s truck had a
flat tire. Johnston exhibited obvious signs of
intoxication, and he had facial injuries.
Johnston’s
account of the confrontation changed several times during the traffic
stop. Johnston
gave different versions of the location of the confrontation, the number of
vehicles involved, the attackers’ actions and Johnston’s conduct. Johnston
did not recall telling Officer Nye that he was angry when he drove out of the
parking lot and although there may have been people in the way, these were the
people who had beaten him. Johnston was
cross-examined about his statements to police in which he did not mention that
he drove into the parking lot due to a flat tire or that someone jumped onto
his vehicle as he entered the parking lot.
¶5 Wagner testified that Johnston and Martarona continued the
bar fight in the street, and Martarona pushed her out of the way as Johnston
drove his truck into the parking lot and then hit Berry’s truck. Wagner opined that Johnston did not act intentionally; rather,
he hit the gas and entered the lot. Wagner
was impeached with her statements to police on the night of the incident in which
she described aggressively dangerous driving by Johnston, including accelerating straight at
a group of people.
¶6 Berry testified that Johnston’s truck came at
him and Russell in the parking lot. Berry got away, but
Russell ended up on the truck’s hood before he fell off. The jury convicted Johnston of four counts of second-degree
recklessly endangering safety. In
denying Johnston’s
postconviction motion, the circuit court concluded that he did not demonstrate
that he was prejudiced by his trial counsel’s representation.
¶7 Johnston
contends that his trial counsel did not provide effective assistance. The ineffective assistance of counsel standards
are:
To establish an ineffective assistance of
counsel claim, a defendant must show both that counsel’s performance was
deficient and that he or she was prejudiced by the deficient performance. A reviewing court may dispose of a claim of
ineffective assistance of counsel on either ground.…
We review the denial of an ineffective
assistance claim as a mixed question of fact and law. We will not reverse the trial court’s factual
findings unless they are clearly erroneous. However, we review the two-pronged
determination of trial counsel’s effectiveness independently as a question of
law.
State v. Kimbrough,
2001 WI App 138, ¶¶26-27, 246 Wis.
2d 648, 630 N.W.2d 752 (citations omitted). The test for prejudice is whether our
confidence in the outcome is sufficiently undermined. State v.
Johnson, 153 Wis. 2d 121, 129, 449
N.W.2d 845 (1990). The defendant
has the burden of proof. State
v. Smith, 207 Wis.
2d 258, 273, 558 N.W.2d 379 (1997).
¶8 On appeal, Johnston
argues that his trial counsel was ineffective for failing to investigate
various witnesses and other aspects of the case. A defendant who
contends that counsel failed to investigate “must allege with specificity what
the investigation would have revealed and how the investigation would have
altered the outcome of the trial.” State
v. Flynn, 190 Wis. 2d 31, 48, 527
N.W.2d 343 (Ct. App. 1994) (citation omitted), cert. denied, 514 U.S.
1030 (1995).
¶9 Johnston
argues that pretrial investigation would have revealed how his truck tire
became damaged. The circuit court found
that it was not clear during trial how the tire became damaged, i.e., whether it
was slashed or Johnston damaged it by the way he drove that night. We agree with the circuit court that the
origin of the tire’s damage made no difference to the outcome of the trial. It was undisputed that the tire was damaged;
Johnston and Officer Nye testified to that fact. The jury heard Johnston’s claim that he could not control
his truck because of the tire’s condition, even though he was able to drive the
truck several blocks from the parking lot before being intercepted by Officer
Nye. Investigation and testimony
regarding how the tire was damaged would not have added anything to the case. Johnston
was not prejudiced by his counsel’s failure to develop this issue.
¶10 Johnston
next argues that his counsel should have interviewed Wagner, a witness at the
bar and in the parking lot. In
particular, Johnston
argues that Wagner would have offered information about the personal and business
relationship between the bartender and the victims in order to impeach the
bartender’s credibility. Wagner described this relationship at the
postconviction motion hearing on Johnston’s
ineffective assistance claim. Johnston also
contends that his trial counsel could have learned from Wagner that Wagner and
the victims coordinated their accounts of the incident to paint Johnston as the aggressor
and themselves as the victims.
¶11 At the postconviction motion hearing, the circuit court found
that Wagner was a friend of Johnston and his family, and that her trial
testimony differed from her statements to the police on the evening of the
events. The court found that Wagner’s statements
to police were more credible than her trial testimony, the former having been made
shortly after the threatening incident. In
addition, Wagner admitted that she drank extensively the night of the incident
and could not recall anything she said that night. The court characterized Wagner’s postconviction
motion testimony as obviously biased in favor of Johnston and suggested that the jury would
have perceived such testimony as more of the same. The circuit court was in the best position to
assess Wagner’s trial testimony. Cf. State v. Hagen, 181 Wis. 2d 934, 948-49, 512 N.W.2d 180 (Ct.
App. 1994) (circuit court has an advantage over this court in assessing the
impact and effect of matters on the outcome of the proceeding). Johnston
did not establish prejudice arising from trial counsel’s approach to Wagner’s
trial testimony.
¶12 Johnston criticizes trial
counsel’s failure to determine whether an expert would have been available to
discuss the effect of Johnston’s
injuries on his conduct. Trial counsel testified
postconviction that she did not pursue such an expert because there was no
indication that Johnston’s
injuries rendered him confused or unable to recall events. Johnston
did not testify at trial or on postconviction motion that he was incapacitated
in some manner as a result of his injuries or that any alleged incapacity
extended to his vision or his ability to operate his truck. Therefore, Johnston did not sustain his burden to show
that he was prejudiced by trial counsel’s failure to pursue such information
for trial.
¶13 Johnston
criticizes trial counsel’s choice of the necessity defense and suggests that counsel
should have also argued self-defense.
When Johnston raised the possibility of a
self-defense instruction during trial, the circuit court ruled that the
instruction was not warranted by the evidence because Johnston denied that he intentionally
operated his vehicle in a manner that recklessly endangered the victims. Johnston
does not argue that the circuit court’s view of the evidence was erroneous. Because the circuit court rejected a
self-defense instruction, counsel cannot be faulted for not pursuing such a
defense. Cf. State v. Simpson,
185 Wis. 2d
772, 784, 519 N.W.2d 662 (Ct. App. 1994) (counsel cannot be faulted for not bringing a motion that would have
failed).
¶14 Johnston argues that his
trial counsel failed to request a unanimity instruction and that the jury
should have been instructed to unanimously determine which acts constituted
second-degree reckless endangerment. The
unanimity instruction, Wis JI—Criminal 517, states: “[b]efore you may return a verdict of guilty,
all 12 jurors must be satisfied beyond a reasonable doubt that the defendant
committed the same act and that the act constituted the crime charged.”
¶15 Johnston
argues that he committed separate acts:
the acts that occurred when he drove into the parking lot and the acts
that occurred when he drove out of the parking lot. Therefore, he argues, the jury should have
been instructed to agree unanimously on the acts constituting the crime. Johnston’s
premise is flawed. “Wisconsin has
historically held that in ‘continuing course of conduct’ crimes, the
requirement of jury unanimity is satisfied even where the jury is not required
to be unanimous about which specific underlying act or acts constitute the
crime.” State v. Johnson, 2001
WI 52, ¶17, 243 Wis.
2d 365, 627 N.W.2d 455. Johnston drove
his truck into the parking lot, threatened the victims, crashed into Berry’s vehicle,
and threatened the victims again as he exited the parking lot. This was a continuing course of conduct, and
there was no “break in the action.” State
v. Giwosky, 109 Wis.
2d 446, 456, 326 N.W.2d 232 (1982). Johnston was charged with
one crime per victim, and the events in the parking lot were properly
considered by the jury as a continuing course of conduct.
¶16 Finally, Johnston
alleges that at the sentencing, the court considered inaccurate information and
pending criminal charges. The court
sentenced Johnston
to a four-year term consisting of eighteen months of initial incarceration and
thirty months of extended supervision.
On the other three counts, the circuit court withheld sentence and
placed Johnston
on concurrent five-year terms of probation consecutive to his period of
incarceration.
¶17 The court was aware of its duty under State v. Gallion, 2004 WI
42, ¶76, 270 Wis. 2d 535, 678 N.W.2d 197, to enunciate its sentencing rationale
and show an exercise of sentencing discretion.
The court considered Johnston’s
character, his lack of remorse, and the need to protect the public. The court found that the offenses were very
serious and that the victims were at great risk of injury by Johnston’s operation of his truck. Johnston
was intoxicated and driving dangerously.
The court acknowledged that it was aware that Johnston had four unresolved bail jumping
charges and that he had been in contact with a witness in violation of a bond condition. The court stated that it was aware that
probation was an option, but that placing Johnston
in the community would not impress upon Johnston
the seriousness of his conduct.
Postconviction, the court declined to modify the sentence.
¶18 Johnston
argues that the court erroneously considered the unresolved bail jumping
charges. A sentencing court may consider
pending charges that shed light on the defendant’s character. State v. Hubert, 181 Wis. 2d 333, 346, 510
N.W.2d 799 (Ct. App. 1993). Clearly, a
defendant charged with bail jumping is a risk for probation because he or she
has allegedly demonstrated an inability to follow rules while in the
community. Allegations of bail jumping
also shed light on a defendant’s character.
¶19 Johnston
argues that the court did not comply with Gallion in imposing sentence. We disagree.
The court stated its sentencing rationale and relied upon appropriate
sentencing factors, the weight of which was within the circuit court’s
discretion. State v. Russ, 2006 WI
App 9, ¶14, 289 Wis.
2d 65, 709 N.W.2d 483.
¶20 Johnston
argues that the court placed excessive weight on the fact that he did not
express remorse. First, the weight
placed on sentencing considerations is solely within the circuit court’s
discretion. Id.
Second, the court considered other appropriate sentencing factors,
including the severity of the offenses, the need to protect the public and the
need to deter such conduct by others. See id.
¶21 Johnston
complains that the circuit court did not state any reasons for the
eighteen-month period of initial incarceration.
The exercise of sentencing discretion does not lend itself to mathematical
precision. Gallion, 270 Wis. 2d 535, ¶49. The court adequately explained why
incarceration rather than probation was appropriate. The court properly exercised its sentencing
discretion.
By the Court.—Judgments and order
affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.