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COURT OF APPEALS
DECISION
DATED AND FILED
March 18, 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.
Jermaine Bell,
Defendant-Appellant.
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APPEAL
from judgments and an order of the circuit court for Walworth County: john
r. race, Judge. Affirmed.
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Jermaine Bell appeals from
judgments of conviction for second-degree recklessly endangering safety,
battery and disorderly conduct, all as a repeater, as domestic abuse and by use
of a dangerous weapon, and from an order denying his postconviction motion
alleging ineffective assistance of trial counsel. He contends that trial counsel conceded his guilt
during closing argument, failed to investigate the victim’s mental illness and
failed to advance a defense theory of “accident.” We conclude that Bell was not deprived of effective assistance
of counsel. We affirm the judgments and
order.
¶2 The criminal complaint alleged that Bell choked Sarah Alexander during an
altercation and cut her with a knife. The
State charged him with first-degree reckless endangerment, battery and
disorderly conduct, each with repeater, domestic abuse and weapon penalty
enhancers.
¶3 Alexander testified at trial that Bell became angry when she told him she
wanted to end their relationship. Bell choked her with his
hands and strangled her with a cord, then drew a knife and stabbed her in the
neck. Alexander eventually fled with her
five-year-old daughter and called the police.
The daughter testified that she heard Alexander “yelling” and saw them
“fighting,” and acknowledged telling police that she saw “daddy choking [her]
mom.” One of the police officers who
responded to the scene testified that Bell
had locked himself in the bathroom and yelled to the officers that he had a gun
and intended to use it. The officers
kicked the door in and subdued Bell
with a Taser when he refused to put his hands behind his back. Bell
exercised his right not to testify. No
witnesses testified on his behalf.
¶4 In closing arguments, defense counsel focused on the
first-degree reckless endangerment charge, for which the State had to prove
that Bell
endangered the safety of another human being and did so by criminally reckless
conduct,
and the circumstances of his conduct showed utter disregard for human
life. See Wis JI—Criminal 1345. Defense counsel argued:
What
we do have is scarey [sic] conduct. What
we do have is dangerous weapon conduct….
But the question is and still remains was what occurred a substantial
risk of death or great bodily harm; that’s what the statute says and what the
jury instruction says. And that
particular question is answered in the no.
….
[C]an we say that there is absolutely no regard for
life because that’s what the statute says, utter disregard for life. There is no regard whatsoever at all, not
even momentarily. And I would argue that
… it doesn’t meet the test of the statute.
Battery, disorderly conduct, are
different situations and different elements—I’m not arguing against those….
Is there utter disregard for human life? The answer is no. And is this type of conduct reckless? Absolutely.
But is it reckless in such a degree that it is a substantial risk of
death or great bodily harm—and that’s the question.
When
you go back and deliberate I have no doubt that you will look with absolute
disfavor on what Mr. Bell did and I’m not here to defend that. What I’m here to argue is the facts and the
law don’t match in this particular instance ….
I’m not standing up here giving an absolute declaration of innocence,
meaning my client didn’t do anything wrong.
I think I would be ridiculous in saying that. But … the law still applies.
….
So
when you go back, look at the law and the facts and they must match—absolutely
must…. And I will argue that in this
particular instance the law and the facts don’t match and therefore you can’t
find him guilty.
¶5 The jury found Bell guilty of second-degree
reckless endangerment, see Wis JI—Criminal 1347, as well as of
battery and disorderly conduct, all with the penalty enhancers. Bell’s
motion for postconviction relief alleging ineffective assistance of counsel
failed, and he appeals.
¶6 Bell contends that his trial counsel was constitutionally
ineffective because in closing argument he conceded Bell’s guilt on all three
charges, failed to file a Shiffra-Green
motion for an in camera inspection of Alexander’s confidential mental health
treatment records, and failed to pursue an accident defense. To establish ineffective assistance of
counsel, a defendant must show both that counsel’s performance was deficient
and that the deficiency was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687
(1984). Counsel’s conduct is deficient if it falls below an objective standard
of reasonableness. State v. Thiel, 2003 WI
111, ¶19, 264 Wis.
2d 571, 665 N.W.2d 305. To prove
prejudice, a defendant must show 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., ¶20
(citation omitted). The strong
presumption is that counsel rendered adequate assistance. Strickland, 466 U.S. at
690.
¶7 Appellate review of an ineffective assistance of counsel
claim presents a mixed question of law and fact. State v. McDowell, 2004 WI 70, ¶31,
272 Wis. 2d
488, 681 N.W.2d 500. We will not disturb
the trial court’s findings of fact unless they are clearly erroneous. Id.
The ultimate determination of whether
counsel’s performance satisfies the constitutional standard for ineffective
assistance of counsel presents a question of law which we review de novo. Thiel, 264 Wis. 2d 571, ¶21.
¶8 Bell
first contends that trial counsel conceded guilt on all three charges. We disagree.
Counsel argued in closing that under the statute and the jury
instructions, “criminally reckless conduct” means conduct that creates a
substantial risk of death or great bodily injury. He told the jury “that particular question”
should be answered “no … not because it’s not dangerous, not because it’s not
serious, but it doesn’t meet the test of the statute.” We assume the trial court implicitly found
that counsel did not concede reckless endangerment, and we accept that finding
because the record is clear. See Town
of Avon v. Oliver, 2002 WI App 97, ¶23, 253 Wis. 2d 647, 644 N.W.2d 260. We may assume a missing finding was
determined in a manner that supports the final decision. State v. Pallone, 2000 WI 77, ¶44 n.13,
236 Wis. 2d
162, 613 N.W.2d 568.
¶9 As to the other two charges, the trial court found at the
close of the Machner
hearing that trial counsel’s concession to the facts underpinning the two
misdemeanors was a means of maintaining credibility and directing the jury’s
attention away from the “very substantial felony” of reckless endangerment, and
declined to find that Bell had to accede to this strategy. These findings are not clearly
erroneous. Defense counsel testified
that his primary concern was the first-degree reckless endangerment and that he
acknowledged Bell’s
culpability on the battery and disorderly conduct charges, of which there was
significant credible evidence, so as to be taken more seriously by the jury.
¶10 Bell
asserts that if the concession was a trial strategy, counsel should have gotten
his consent to pursue it or at least consulted with him. A lawyer is not required to consult with the
client on tactical moves, however. State
v. Gordon, 2003 WI 69, ¶29, 262 Wis.
2d 380, 663 N.W.2d 765. Counsel’s
concession of guilt on a lesser count in a multiple-count case, in light of
overwhelming evidence on that count and so as to gain credibility and win
acquittal on the other charges, is a reasonable strategy which does not render
counsel constitutionally ineffective. Id., ¶28. Bell
tries to distinguish Gordon on the basis that Gordon conceded
his guilt during his own testimony. See id., ¶13. We see this as a distinction without a
difference. Gordon still does not
mandate that a defendant approve counsel’s strategic decisions. We decline Bell’s invitation to “take another look at Gordon
[] and declare it no longer good law.” See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Bell’s
citation to other jurisdiction’s contrary leanings is unpersuasive. Failing to raise an unsettled point of law is
not ineffective assistance. See State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App.
1994). Besides, counsel’s strategy bore
some fruit: the jury convicted Bell of second-degree
reckless endangerment, rather than first.
¶11 Bell
next contends that trial counsel failed to investigate whether Alexander suffered
from a psychiatric disorder and mental illness at the time in question so that
he might have undermined the reliability of her testimony. Relying on State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State
v. Green, 2002 WI 68, 253 Wis.
2d 356, 646 N.W.2d 298, Bell claims trial counsel should have requested a
hearing seeking an in camera review of Alexander’s treatment records.
¶12 A defendant may obtain an in camera review of a victim’s
confidential mental health records upon showing that the records are material
to the defense. See Shiffra, 175 Wis.
2d at 605. The preliminary showing must
set forth “a specific factual basis demonstrating a reasonable likelihood that
the records contain relevant information necessary to a determination of guilt
or innocence”. Green, 253 Wis. 2d 356, ¶34. Information is “necessary to a determination
of guilt or innocence” if it tends to create a reasonable doubt that otherwise
might not exist. Id. The fact-specific evidentiary showing must
describe as precisely as possible the information sought and its relevance to the
particular defense. Id., ¶33. The request must be based on more than mere
speculation as to what the records contain and show more than a mere
possibility that they will contain evidence of use to the defense. Id.
Whether the defendant has met his or her
burden of making the preliminary evidentiary showing is a question of law that
we review de novo. See id., ¶20.
¶13 Bell
provided an affidavit in support of his postconviction motion asserting that
Alexander’s accusations were fabrications, and that he believed Alexander “may
have suffered from” bipolar disorder for which she was prescribed
medication. He stated that he sought
review “only to obtain evidence concerning whether … Alexander [] may have
suffered from a psychiatric disorder or mental illness which causes her an
inability to truthfully relate facts as she perceives them.” Bell asserted that trial counsel “never
inquired of me whether I was aware of whether [Alexander] suffered from a mental
illness or a disorder,” and would have given counsel this information had counsel
so inquired.
¶14 Bell
does not carry his burden. His
tentatively phrased affidavit falls short of the fact-specific evidentiary
showing Green requires. It
speculates about what the records might contain, rather than showing a
reasonable likelihood of relevant information that would create a reasonable
doubt that otherwise might not exist. See Green, 253 Wis. 2d 356, ¶34. Furthermore, the issue was not whether
Alexander fabricated the incident. The
jury saw photographs depicting ligature marks and the stab wound and heard the
daughter’s testimony. Trial counsel’s failure
to bring a meritless motion does not constitute deficient performance. State v. Swinson, 2003 WI App 45,
¶59, 261 Wis.
2d 633, 660 N.W.2d 12.
¶15 Bell
next contends trial counsel failed to raise the affirmative defense of accident
and to request the associated jury instruction.
See Wis JI—Criminal 772. An instruction on a valid applicable theory
of defense must be supported by credible evidence. See State v.
Bernal, 111 Wis.
2d 280, 282, 330 N.W.2d 219 (Ct. App. 1983).
The credible evidence here did not support that Alexander’s ligature
marks and stab wound to her neck were the result of an accident. Failure to raise a meritless legal issue is
not deficient performance. State
v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441.
¶16 Lastly, Bell
argues that the cumulative effect of his trial defense counsel’s errors is sufficient
to undermine our confidence in the outcome of his trial. See
Thiel,
264 Wis. 2d
571, ¶60. We disagree. Each alleged error must be deficient in law
to be included in the calculus for prejudice. Id., ¶61. We have rejected all of his arguments that
counsel’s performance was deficient. We
therefore reject this argument, too.
By the Court.—Judgments and
order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.