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COURT OF APPEALS DECISION DATED AND FILED July 28, 2009 David
R. Schanker Clerk of Court of Appeals |
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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 III |
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State of Plaintiff-Respondent, v. Edward Max
Lewis, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Edward Max Lewis, pro se, appeals an order denying his Wis. Stat. § 974.06[1] postconviction motion. He raises numerous issues on appeal, most of which are wholly undeveloped and are based on factual claims that are refuted by the record. Contrary to Wis. Stat. Rule 809.19(1)(d), Lewis’s brief makes no citation to the record for any facts. Therefore, we will confine our review to three issues: (1) whether Wis. Stat. § 974.06(3) requires the court to hold an evidentiary hearing when it allows but does not compel the State to file a response; (2) whether Lewis’s trial counsel was ineffective in jury selection, for failing to introduce written reports prepared by the State’s witnesses and failing to challenge the credibility of Lewis’s brother, Orin; and (3) whether Orin’s recantation provides a basis for a new trial. We reject Lewis’s arguments and affirm the order.
BACKGROUND
¶2 Lewis was convicted of repeated sexual assault of his stepdaughter. The abuse came to light when Lewis told his wife he had molested the child and also molested his stepson. His wife believed Lewis wanted her to participate in sex acts with him and the children. She called the police. An officer testified that Lewis admitted having sexual contact with his stepdaughter twelve or more times. Two days later, Lewis recanted his confession. However, while in jail, he told a social worker of a “series of incidents, more than one incident” of sexual contact and sexual penetration of his stepdaughter. Lewis’s stepdaughter testified and confirmed sexual contact and intercourse with Lewis. Orin also testified that he had witnessed the child performing oral sex on Lewis and that Lewis had engaged in sex acts with Orin on multiple occasions. Lewis testified, denying assaulting the child, and testified that Orin committed the assaults. Lewis said he wanted to die and, by taking the blame, his father-in-law would kill him. He also wanted to protect Orin from prison.
¶3 The jury convicted Lewis and this court affirmed the conviction. Lewis then filed the present postconviction motion. The court indicated the State could file a response to the motion, but was not required to do so. The court also granted the State’s motion to extend the time for filing a response. When the State did not respond, the court examined the motion and denied it without a hearing.
DISCUSSION
¶4 Wisconsin Stat. § 974.06(3)
does not require the court to hold a hearing merely because it allowed the
State an opportunity to respond. The
trial court’s invitation to respond was not made after any examination of the
motion to determine whether it had arguable merit. The court later correctly decided the motion
failed to present sufficient nonconclusory facts and allegations to establish
any entitlement to relief.
¶5 Lewis’s various claims of ineffective assistance of trial
counsel fail because his motion does not establish deficient performance and
prejudice. See Strickland v. Washington,
466
¶6 Lewis faults his trial counsel for failing to remove four
jurors from the panel. The first juror,
a teacher, did not know Lewis or any of his brothers or the victim or any of
her family. Lewis identifies no bias by
that juror. The second juror knew the
victim’s grandfather, but was not aware that he had any children or
grandchildren. Again, Lewis establishes
no bias. The third juror said the
victim’s father was her husband’s nephew.
She never saw the victim’s father and did not know he had a child. Again, there is no basis for excluding that
juror. The fourth juror, Brian Retzlaff,
was the son-in-law of the Crandon Police Chief who testified in this case. However, the police chief added nothing of
significance to the case and was, in fact, arguably more favorable to the
defense. He testified that Lewis
reported to him that he found child pornography on his computer. The police chief turned the matter over to an
investigator in
¶7 Lewis also contends Retzlaff showed subjective bias during
voir dire. Another prospective juror said
he had a “faint feeling” that a defendant might be “a little bit guilty” if he
was charged, and “if there wasn’t some reason for the police to be there to
pick them up they wouldn’t be in court,” Retzlaff stated he agreed with what
the other venireman said. Defense
counsel then lectured the panel regarding the presumption of innocence and the
requirement that the State prove guilt beyond a reasonable doubt. Retzlaff’s adoption of the other venireman’s
equivocal statements does not establish subjective bias. A perspective juror need not respond to voir
dire questions with unequivocal declarations of impartiality.
¶8 Lewis contends his trial counsel was ineffective because he failed to adequately cross-examine a sexual assault nurse and a doctor by introducing their written reports. Lewis’s trial counsel did cross-examine the witnesses, who admitted the victim’s hymen was intact and there was no scarring, bleeding, discharge or lesions. The witnesses also explained why these findings were not inconsistent with the victim’s allegations. Because the jury heard the doctor’s and nurse’s testimony, it was not necessary to introduce the written reports that confirmed their testimony. Lewis has established neither deficient performance nor prejudice from his counsel’s failure to introduce the written reports.
¶9 Lewis next claims his counsel was ineffective for failing to attack Orin’s credibility. The argument is based on the incorrect premise that Orin denied sexually assaulting the victim and her brother. Orin was asked whether he was charged with sexually assaulting the victim and her brother and he answered that he was. He was never asked and did not answer whether he committed the assaults. Orin later pled guilty to sexually assaulting the victim. Even if cross-examination by Lewis’s counsel could have established that Orin also sexually assaulted the victim, that evidence would not exculpate Lewis. There is no reason to believe both of them did not assault the victim.
¶10 Orin has recanted his testimony. He now indicates he did not see Lewis sexually assaulting the victim, and he states he was not around during the time frame that Lewis allegedly assaulted her. Therefore, Orin has no direct evidence of Lewis’s innocence. Lewis’s defense was not that the victim was not sexually assaulted. Instead, he claimed he confessed to sexually assaulting the victim to cover for Orin who had really committed the crimes. This defense is not helped by Orin’s recantation. Orin now says he lived in other homes at the time and had no knowledge of what was going on in Lewis’s home.
¶11 The only significant part of Orin’s recantation is that he withdraws his testimony that he saw Lewis sexually assault the victim. That testimony was not critical to the State’s case. In addition to the victim’s testimony, the jury heard that Lewis confessed to the sexual assaults to his wife and to the police. His version at trial, that he confessed because he knew Orin had sexually assaulted the victim, would not have been supported by evidence that Orin was not around and therefore was not responsible for the crime.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.