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COURT OF APPEALS DECISION DATED AND FILED May 27, 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Myron Elcado Edwards, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 KESSLER, J. Myron E. Edwards, pro se, appeals from an order denying his Wis. Stat. § 974.06 (2007-08)[1] motion for postconviction relief. Edwards asserts that the postconviction counsel who represented him on his direct appeal was ineffective for failing to raise claims that trial counsel was ineffective and for not properly impeaching trial counsel at a Machner[2] hearing. We conclude trial counsel was not ineffective, which means postconviction counsel was not ineffective for failing to so allege. Further, we conclude that postconviction counsel did not provide ineffective assistance during cross-examination of trial counsel at the Machner hearing. Therefore, we affirm the order.
BACKGROUND
¶2 In 1996, Edwards was convicted after a jury trial of two counts of first-degree intentional homicide, one count of attempted first-degree intentional homicide, one count of attempted armed robbery and five counts of armed robbery, all as party to a crime, contrary to Wis. Stat. §§ 940.01(1), 943.32(1)(a) and (2), 939.32, and 939.05 (1995-96). He was sentenced to two consecutive life terms in prison without parole, plus 260 years.
¶3 For reasons not relevant to this appeal, he did not
immediately file a motion for postconviction relief or a direct appeal. Ultimately, his direct appeal rights were
reinstated and, with the assistance of postconviction counsel, Edwards filed a
motion for postconviction relief. A Machner
hearing was conducted. His motion was
denied and he appealed both the judgment and order in his direct appeal. We affirmed.
¶4 In Edwards, we summarized the facts of
the case. As relevant here, the police
first interacted with Edwards during an investigation of an armed robbery at
the Mitchell Street Bank that occurred on January 3, 1996.
During the questioning, Edwards confessed to committing this bank robbery as well as five other armed robberies over the past three weeks, including a liquor store, two other banks and a video store. During the liquor store robbery, the store owner was shot and killed. During the video store robbery, a security guard was shot and killed and a patron was shot and left for dead.
¶5 In his direct appeal, Edwards raised numerous challenges,
including a single allegation of ineffective assistance of counsel that alleged
trial counsel failed to present an alibi offense.
¶6 In March 2008, Edwards, acting pro se, filed the postconviction motion that is the subject of this appeal. He alleged that he had been denied the effective assistance of postconviction counsel because postconviction counsel failed to allege that trial counsel was ineffective in numerous ways, all of which are raised on this appeal and are discussed below. He further alleged that postconviction counsel was ineffective for not effectively impeaching trial counsel at the Machner hearing. The postconviction court denied Edwards’s motion in a written order, without a hearing. This appeal follows.
LEGAL STANDARDS
¶7
¶8 To prove ineffective assistance of counsel, a defendant must
show deficient performance and prejudice.
Strickland v.
¶9 To prove deficient performance, the defendant must point to
specific acts or omissions of the lawyer that are “outside the wide range of
professionally competent assistance.”
¶10 To satisfy the prejudice aspect of Strickland, the defendant
must demonstrate that the lawyer’s errors were sufficiently serious to deprive
him or her of a fair proceeding and a reliable outcome.
¶11 A claim of ineffective assistance of counsel presents a mixed
question of fact and law. State
v. O’Brien, 223
¶12 When a defendant raises an ineffective assistance claim in a postconviction motion, the following legal standards apply:
Whether a defendant’s postconviction motion alleges sufficient facts to entitle the defendant to a hearing for the relief requested is a mixed standard of review. First, we determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief. This is a question of law that we review de novo. If the motion raises such facts, the [trial] court must hold an evidentiary hearing. However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the [trial] court has the discretion to grant or deny a hearing. We require the [trial] court “to form its independent judgment after a review of the record and pleadings and to support its decision by written opinion.” We review a [trial] court’s discretionary decisions under the deferential erroneous exercise of discretion standard.
State v. Allen, 2004 WI
106, ¶9, 274
DISCUSSION
¶13 At issue is whether Edwards’s postconviction counsel was
ineffective for failing to allege that trial counsel was ineffective in numerous
ways, and for not effectively impeaching trial counsel. We conclude that the postconviction court did
not erroneously exercise its discretion when it denied Edwards a postconviction
hearing because “the record conclusively demonstrates” that Edwards is not
entitled to relief. See Allen, 274
I. Challenge to the preliminary hearing.
¶14 Edwards argues that “trial counsel was ineffective for not challenging the trial court’s competency to exercise subject matter jurisdiction.” (Capitalization omitted.) Specifically, Edwards asserts that trial counsel should have objected based on three errors associated with the preliminary hearing. We reject his arguments on these three alleged errors and therefore reject his challenge to subject matter jurisdiction.
¶15 Edwards argues that trial counsel should have objected to the fact that the Information was filed before the preliminary hearing started, which Edwards asserts is improper because Wis. Stat. § 971.01(2) directs the State to file the information “within 30 days after the completion of the preliminary examination.” See id. (emphasis added). The postconviction court rejected this argument because the State filed the Information the same day as the preliminary hearing, which the postconviction court reasoned “was within 30 days after the completion of the preliminary examination.” See id.
¶16 In response to Edwards’s argument, the State notes that it is not clear that the Information was filed prior to the preliminary hearing. The State explains: “Edwards infers from a statement by the prosecutor at the end of the preliminary hearing transcript that the Information was filed before the preliminary hearing. The record provides no further information about the precise time the Information was filed.” (Record citation omitted.) The State argues that assuming Edwards’s inference is correct, his challenge on appeal nonetheless fails because even if trial counsel had objected to the filing of the Information, the remedy would have been dismissal without prejudice and the State could have simply refiled the Information.[3]
¶17 We agree with the State.
Edwards has failed to show that trial counsel’s alleged error was
prejudicial. Therefore, trial counsel
was not ineffective, and postconviction counsel was not ineffective for not
arguing trial counsel ineffectiveness.
Thus, we are affirming the postconviction court order, albeit on a basis
not relied upon by the postconviction court.
See Holt, 128
¶18 Next, Edwards argues that the Information was insufficient
under Wis. Stat. § 971.01(1),
because it did not provide adequate notice of the charges against him and he
therefore “could not properly prepare a defense to any of the charges.”[4] See
Blenski
v. State, 73
¶19 Like the postconviction court, we reject this argument. The complaint was sufficiently detailed to apprise Edwards of the charges against him and the Information is consistent with the format spelled out in Wis. Stat. § 971.03. In addition, Edwards has provided us with no specific examples or citations to the record documenting difficulties Edwards believes trial counsel experienced preparing a defense because of the format of the complaint or the Information. For these reasons, there was no valid basis to challenge the Information and trial counsel was therefore not deficient for not doing so. It follows that postconviction counsel was not deficient for not alleging trial counsel deficiency on this basis.
¶20 Edwards argues that the court commissioner that conducted the preliminary hearing “failed to comply” with Wis. Stat. § 970.03(10) because Edwards “was entitled to have a finding on probable cause, of each count in his multiple count criminal complaint.” The postconviction court rejected this argument, finding “that the preliminary hearing transcript shows that probable cause was found as to each count as it pertained to each defendant.” We agree.
¶21 At the conclusion of the preliminary hearing, which included testimony concerning multiple defendants, the court commissioner stated: “Based on the testimony on this record, I find probable cause to believe that the felonies have been committed within the jurisdiction of the [court] … and probably committed by each defendant.”[5] On appeal, Edwards explicitly states that he “is not challenging the sufficiency of the evidence presented at the preliminary hearing.” Rather, his argument appears to be that the court commissioner was required to state each count individually. However, the cases Edwards cites do not support that proposition. We are not persuaded. We conclude that trial counsel was not ineffective for failing to raise this issue, and that postconviction counsel was not deficient for not challenging trial counsel’s performance on this issue.
II. Challenge to the jury instruction and verdict
conference.
¶22 Edwards argues that “trial counsel was ineffective for not
objecting to the trial court’s failure to hold a jury instruction and verdict
conference” that was “on the record.” (Capitalization omitted.) The postconviction court’s written decision
stated: “Although there is no notation
on the docket sheets that a jury instruction conference was held [on the
record], the defendant must demonstrate that he was prejudiced by counsel’s
failure to object to a specific instruction.”
(Footnote omitted.) The postconviction
court rejected Edwards’s argument on prejudice grounds. We likewise reject Edwards’s argument, but
for a different reason: there was an off-the-record jury instruction
and verdict conference, and it was memorialized on the record.[6] See Holt, 128
¶23 At the close of the evidence, after both parties had rested, the trial court told them: “Then I would like to talk with counsel in chambers about the jury instructions.” Later, the trial court stated on the record:
Okay. The record should reflect that I’ve had an opportunity to meet with counsel to discuss the jury instructions and how we’re proceeding at this time. I did provide counsel with a copy of proposed jury instructions. They are based on requests that were made by the parties.
In fact, I granted every request except 200-A…. And I did not include any lesser includeds, and we’ll talk about that. But other than that, they are all the instructions.
The trial court identified the jury instructions by number and also noted that it had shown counsel the proposed verdict forms.
¶24 In his reply brief, Edwards implicitly acknowledges that the parties spoke off the record. However, he asserts that the entire conference had to take place on the record. We disagree. Wisconsin Stat. § 805.13(3)[7] governs the jury instruction and verdict conference. It provides:
Instruction and verdict conference. At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.
Contrary to Edwards’s assertion, this statute does not prohibit the trial court from talking with the parties off the record, and it is in fact common practice for the trial court and counsel to meet off the record, outside the jury’s presence, to discuss the jury instructions. A trial court is required to state “its proposed action on the motions,” which it did in this case, and any objections by counsel must be on the record or they are waived. See id. Edwards’s suggestion that the way the trial court summarized the proceedings somehow entitles him to a new trial is without merit.
¶25 We conclude that trial counsel was not deficient for failing to object to the way the trial court summarized the jury instruction conference, and postconviction counsel was not deficient for failing to challenge trial counsel’s effectiveness on this basis.
III. Substantive challenges to the jury instructions.
¶26 Next, Edwards argues that trial counsel should have objected to three problems with the jury instructions. We have recognized that:
[a] trial court has broad discretion in deciding whether to give a particular jury instruction, and the court must exercise its discretion to “fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence.”
State v. Jensen, 2007 WI
App 256, ¶8, 306
A. Armed robbery
instruction.
¶27 Edwards was charged with five counts of armed robbery, in violation of Wis. Stat. § 943.32(1)(a) and (2) (1993-94),[8] and one count of attempted armed robbery. Section 943.32 provided in relevant part:
Robbery. (1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class C felony:
(a) By using force against the person of the owner with intent thereby to overcome his or her physical resistance or physical power of resistance to the taking or carrying away of the property….
….
(2) Whoever violates sub. (1) by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon is guilty of a Class B felony.
Because one can violate
§ 943.32(2)[9]
by using or threatening to use: (1) a
dangerous weapon or (2) “any article used or fashioned in a manner to lead the
victim reasonably to believe that it is a dangerous weapon,” two different jury
instructions have been created.[10]
¶28 In this case, it is undisputed that with respect to each count of armed robbery or attempted armed robbery, the State’s theory was that Edwards used an actual firearm, rather than an “article used or fashioned” to lead each of the victims to believe the item was a dangerous weapon. Indeed, the Information uses the term “dangerous weapon” with respect to each count. However, the first (and only) time the trial court defined armed robbery,[11] the trial court used only the “article used or fashioned” language when it stated the fifth element of the crime of armed robbery. The trial court instructed the jury as follows:
Count 3 charges attempt[ed] armed robbery, party to a crime, in the Choice Liquor Store. Count 3 of the [I]nformation charges that on December 11, 1995, at the Choice Liquor Store … as party to a crime, the defendant, with intent to steal, did and by the use or threat of a dangerous weapon attempt to take property from the presence of [the victim] by using force against him with intent to overcome his physical resistance or physical power of resistance to the taking and carrying away of property….
….
Armed robbery, as described in 943.32(2) … is committed by one who with the intent to steal and by use of threat or use of a dangerous weapon or an article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon, takes property form the person….
….
The fifth element requires that at the time of the carrying or taking away, the defendant or another acting with him as party to a crime used or threatened to use an article used or fashioned in a manner to lead [the victim] to reasonably believe it was capable of producing death or great bodily harm.
(Emphasis added.)
¶29 The State acknowledges that “[s]trickly speaking, the [trial] court’s
description of the fifth element was inappropriate because the evidence in the
case and the State’s theory of the case was that Edwards used actual firearms,
not articles ‘used or fashioned’ to lead the victims to believe they were
dangerous weapons.” Thus, the State
concedes, the language of
¶30 We agree with the State.
While it would have been preferable to use the more specific language of
B. Naming victims in the jury instructions.
¶31 Next, Edwards argues that trial counsel was ineffective for failing to object to the jury instructions on counts four through nine because the instructions did not specifically name the victim of each count. Edwards is mistaken. With respect to each count, the victim was identified by name. It is true that the trial court did not repeat the same instructions more than once, choosing instead to simply say, for example, that terms such as party to a crime and armed robbery were already previously defined. This is not error. There was no reason for trial counsel to object, and postconviction counsel was not ineffective for not alleging trial counsel ineffectiveness.
C. Jury instruction on first-degree intentional homicide.
¶32 Edwards’s next argument concerns the trial court’s use of
IV. Challenge to the sentence.
¶33 Edwards, who was sentenced to life in prison without the
possibility of parole, argues that Wis.
Stat. § 973.014(1)(c) (1995-96)[12]
was unconstitutional because it allowed the trial court to make factual
findings “to enhance the statutory maximum of a class A felony (life
imprisonment).” He further argues that
the trial court’s statements that “some murders are more heinous than others”
and that Edwards’s crimes “were cold and calculated” were factual findings that
violated Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi
v.
¶34 First, we reject Edwards’s challenge to the constitutionality
of Wis. Stat. § 973.014(1)(c)
(1995-96). The basis for Edwards’s
challenge is not clear. However, we note
that our supreme court specifically rejected numerous constitutional challenges
to Wis. Stat. § 973.014
(1987-88).
¶35 Second, we reject Edwards’s argument that trial counsel could
have raised a valid objection based on Blakely and Apprendi. Edwards was convicted of two counts of
first-degree intentional homicide as a party to the crime, which carried a
maximum penalty of life imprisonment without parole. See
Wis. Stat. §§ 939.50(3)(a), 940.01(1)
& 973.014 (1995-96).[13] The federal cases on which Edwards relies are
distinguishable because both involved sentences that exceeded the statutory
maximum for the convicted offense. See Blakely,
542
¶36 We conclude there was no basis to challenge Edwards’s sentence on the grounds he alleges. Trial counsel was therefore not deficient for failing to raise those challenges, and postconviction counsel was not deficient for failing to allege trial counsel ineffectiveness on this basis.
V. Impeachment of trial counsel.
¶37 Edwards argues that postconviction counsel was ineffective for failing to attempt to impeach trial counsel’s testimony at the Machner hearing concerning whether Edwards ever told trial counsel he had an alibi. In Edwards’s direct appeal, we rejected his claim that his trial counsel had performed deficiently by failing to present an alibi defense. We stated:
The trial court held a hearing on Edwards’s claim and his former trial counsel testified that he did not recall discussing an alibi defense with Edwards. Edwards asserted otherwise, testifying that he told his trial attorney about alibis for each offense and told him that another specific person committed the crimes. Edwards also presented the testimony of his friend, Jodie Heipel, and his mother, Sonja Gibson. However, neither individual could testify with specificity as to the whereabouts of Edwards on the dates of the crimes.
Moreover, Edwards’s former trial counsel testified that he hired a private investigator, and challenged the State’s case against Edwards with motions regarding the arrest and line-up evidence, and with cross-examination of the State’s witnesses.
At the conclusion of the hearing, the trial court found that Edwards had not discussed with his attorney the possibility of asserting an alibi defense. It found that the record supported Edwards’s former trial counsel’s account as there was no mention of an alibi anywhere throughout the pretrial proceedings, the trial itself, or the initial postconviction proceedings. The trial court found Edwards’s testimony to be incredible. The record supports the trial court’s determinations. If an alibi had been discussed as a viable defense, it would have appeared somewhere during the proceedings. Accordingly, the trial court’s findings are not clearly erroneous and, based on such, we cannot conclude that former trial counsel provided ineffective assistance.
Edwards, No. 2005AP1324-CR, unpublished slip op., ¶¶38-40.
¶38 In his subsequent postconviction motion, Edwards asserted that postconviction counsel should have discovered that trial counsel had submitted a proposed jury instruction on alibi and should have used that information to discredit trial counsel’s testimony that no alibi defense was ever discussed. In effect, Edwards is once again arguing that he was denied the effective assistance of trial counsel because trial counsel did not present an alibi defense.
¶39 Although we dismissed this argument on direct appeal on grounds that Edwards had failed to show his trial counsel’s performance was deficient, we reject it here because Edwards has failed to show trial counsel’s failure to present an alibi defense was prejudicial. Specifically, Edwards has not presented sufficient evidence that he had a valid alibi defense. As we noted in Edwards, neither of the witnesses Edwards offered in support of his alibi theory were able to testify as to his whereabouts on the dates of the crimes. See id., ¶38. To date, he has yet to provide information demonstrating that he has a specific witness who can offer an alibi for any of the crimes in question. Therefore, Edwards has failed to show he was prejudiced by trial counsel’s failure to present an alibi defense and by postconviction’s cross-examination of trial counsel.
CONCLUSION
¶40 We conclude that the postconviction court did not erroneously exercise its discretion when it denied Edwards’s postconviction motion without a hearing. The record conclusively demonstrates that Edwards is not entitled to relief. He has not shown that his trial counsel was ineffective, and therefore his postconviction counsel was not ineffective for failing to allege trial counsel ineffectiveness. Further, we conclude that postconviction counsel did not provide ineffective assistance during cross-examination of trial counsel at the Machner hearing. We affirm the order.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2]
[3] In its well-written brief, the State offers other bases for affirmance. With this and subsequent issues, we will not summarize all possible bases for affirmance. Rather, we will identify the basis upon which we are affirming.
[4] In another section of his brief, Edwards challenges the content of the Information for what appears to be the same reasons cited here. For the reasons stated, we reject this latter argument as well.
[5] The preliminary hearing concerned crimes committed by four defendants, including Edwards.
[6] This information was not easy to find, given the age and size of the record and the lack of a notation in the docket sheets concerning the jury instruction conference.
[7] The current version of Wis. Stat. § 805.13(3) is identical to the 1995-96 version.
[8] Although the armed robberies and the attempted armed robbery at issue occurred in December 1996 and January 1996, we reference the 1993-94 version of Wis. Stat. § 943.32 here because § 943.32(2) was amended by 1995 Wis. Act 288 § 3 (effective date: May 10, 1996) to refer not only to a dangerous weapon but also to “a device or container described under s. 941.26(4)(a).”
[9] The 1995-96 version of Wis. Stat. § 943.32 is identical to the 2007-08 version, except that the classes of crimes have been changed. Currently, one who violates § 943.32(1) is guilty of a Class E felony, while one who violates § 943.32(2) is guilty of a Class C felony.
[10] Wisconsin JI—Criminal 1480 was
originally published in 1966 and
[11] For subsequent counts, the trial court reminded the jury that the crime of armed robbery had already been defined for them. For Count 3 and each of the subsequent counts, the jury was told that the Information alleged that Edwards had used a dangerous weapon.
[12]
Sentence of life imprisonment; parole eligibility determination. (1) Except as provided in sub. (2), when a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, the court shall make a parole eligibility determination regarding the person and choose one of the following options:
(a) The person is eligible for parole under s. 304.06(1).
(b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may set any later date than that provided in s. 304.06(1), but may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 304.06(1).
(c) The person is not eligible for parole. This paragraph applies only if the court sentences a person for a crime committed on or after August 31, 1995.
(2) When a court sentences a person to life imprisonment under s. 939.62(2m), the court shall provide that the sentence is without the possibility of parole.
[13]