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COURT OF APPEALS DECISION DATED AND FILED October 14, 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. Darryl E. Deramus, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Darryl E. Deramus appeals from a judgment of conviction, entered upon a jury’s verdict, for one count of felon in possession of a firearm and one count of obstructing an officer. He also appeals an order denying a motion for postconviction relief.[1] Deramus asserts that it was error for the court to admit evidence of additional guns recovered when Deramus was not alleged to have possessed those weapons. He also asserts that he was denied the right to effective assistance of counsel when his trial attorney failed to object to this evidence on relevancy grounds, and when counsel failed to object to testimony about a “shooter’s nest.” We conclude that the circuit court did not erroneously exercise its discretion in admitting the evidence of additional weapons and that counsel was not ineffective. We therefore affirm the judgment and order.
BACKGROUND
¶2 On June 17, 2007, at approximately 11:15 p.m., a caravan of
four
¶3 As the police vehicles stopped, one of the individuals—later identified as Deramus, who was not a resident of the home—turned away from the officers and fled inside the house. As Deramus was turning, one of the officers noticed a gun, calling out its presence to the other officers. That officer and two others noticed Deramus toss or drop the gun to his side; the police later recovered an Intratec 9mm semi-automatic handgun, loaded with twenty-seven rounds, in the area where Deramus had tossed his weapon. The gun had been tossed near some bushes, landing near a beer can and a beer bottle.
¶4 Officers pursued Deramus into the home. Officer Eric Rom was the first officer behind him; Rom was followed immediately by Officer Rodolfo Gomez. Deramus, who was wearing a black T-shirt, had locked a “Chicago-style” security door behind him but, as the door had no glass or screen, Rom was able to reach in and open the door from the inside. Deramus then tried to close the interior door on Rom, who blocked it. Deramus fled through the house and up a set of stairs. As Rom entered the home, another individual appeared from a side room; Rom secured that individual as two other officers came in behind him; Gomez continued forward while Officer Kevin Bolyard took over with the new individual so that Rom could continue to pursue Deramus.
¶5 Gomez and Rom pursued Deramus upstairs. Gomez had observed him run up the stairs and heard a door slam, but the officers were uncertain if he was on the second floor or in the third-floor attic. As another officer secured and covered a locked door leading to the second floor apartment,[2] Gomez and Rom quickly checked the attic to ensure no one was hiding there, waiting to ambush police. In the attic, the officers noticed that the windows were barricaded with mattresses and cardboard and there were hundreds of rounds of ammunition; Gomez later described this as a “shooter’s nest.”
¶6 Having confirmed no one was on the third floor, Gomez and Rom returned to the second floor, where Rom broke open the locked door. As the officers were making their way through that apartment, Officer Thomas Obregon—who was outside, securing the weapon Deramus had discarded—radioed that the suspect was now out on the second-floor porch. The officers approached and apprehended Deramus, who was now wearing a white T-shirt or tank. A sweaty black T-shirt was recovered in the doorway to the porch. As he was apprehended, Deramus stated he had been inside playing video games and was not the person police were seeking.[3]
¶7 Deramus, who had previous drug-related felony convictions, was arrested and charged for being a felon in possession of a firearm for the Intratec 9mm gun recovered outside the home; carrying a concealed weapon, also relating to the Intratec weapon, which at least one officer reported was pulled from Deramus’s waistband; and obstructing an officer for fleeing from Rom, discarding the weapon, and entering a home not his own in an attempt to elude police.
¶8 Prior to trial, the State advised that it would likely introduce testimony relating to “two or three” other guns that had been found in the house as police made their way through. One had been found near the individual Rom encountered when first entering the home. The other was found in plain view on a mattress as officers cleared the second floor. Deramus’s attorney objected, arguing that the probative value of that testimony would be far outweighed by the danger of unfair prejudice. The court denied the motion, but offered to give a curative instruction to the jury, which would remind them that Deramus was only charged with respect to the weapon recovered outside the house.
¶9 After a two-day trial at which five officers testified, the jury convicted Deramus on the felon in possession and obstruction counts, but acquitted him on the concealed weapon charge. He was sentenced to four years’ initial confinement and five years’ extended supervision on the possession count, and a consecutive nine months in jail on the obstruction charge.
¶10 Deramus then filed a postconviction motion. He alleged it was error for the court to admit evidence of other guns because that evidence was irrelevant or, if relevant, unfairly prejudicial. This was demonstrated, he argued, by a question the jury sent to the court and by its split verdict. Deramus also argued that counsel was ineffective for not objecting to the other guns evidence on relevancy grounds and for failing to object at all to the testimony regarding the “shooter’s nest.” The court denied this motion on briefs, stating that the information was relevant: given that Deramus’s defense went to identification, the testimony was necessary to provide a “full and meaningful narrative.” The court further stated that because the information was relevant, and would have been admissible even over appropriate objections, counsel was not ineffective. Deramus appeals.
DISCUSSION
I. Admissibility
of Evidence, Relevance Grounds
¶11 Deramus first posits that evidence of weapons found inside the house was not relevant because he was only charged with possession of the Intratec 9 mm found outside the house. Therefore, he reasons, evidence of other guns should not have been admitted.
¶12 Generally, all relevant evidence is admissible and irrelevant
evidence is inadmissible. See Wis.
Stat. § 904.02 (2007-08).[4] The question of admissibility is committed to
the trial court’s discretion. State
v. Dukes, 2007 WI App 175, ¶26, 303
¶13 “The proffered evidence need not prove a fact in a ‘substantial
way,’ but it must do more than ‘simply afford[] a possible ground of suspicion
against another person ….’” Michael
R.B. v. State, 175
¶14 The circuit court never made a determination regarding relevance of evidence of other guns because it was not asked to. Deramus argues that the circuit court, in reviewing the prejudice objection, should have made a threshold relevancy determination. See Wis. Stat. § 901.04(1).[5] It is not clear that § 901.04(1) requires such a determination in the absence of a direct challenge to relevance: a party is required to state an objection with specificity to facilitate the court’s review, see State v. Nielsen, 2001 WI App 192, ¶11, 247 Wis. 2d 466, 634 N.W.2d 325, and a prejudice objection presupposes the evidence otherwise, see Wis. Stat. § 904.03.
¶15 In any event, there was at least an implicit determination that the evidence of other guns was relevant. The trial court explained that “given that they had to go in this house and search for the person they saw running into the house, having allegedly dropped a gun outside, I think it would unfairly restrict the State’s witnesses” because they would effectively have to edit their narrative testimony while on the stand. The postconviction court, in rejecting Deramus’s postconviction motion, also explained that “the evidence was relevant to establish what the officers encountered of their pursuit of the defendant in the home and to provide a full and meaningful narrative of events to jurors.” We agree.
¶16 Deramus’s defense strategy was to challenge the officers’ identification of him: he was wearing a black T-shirt out front but the arrested individual was wearing a white shirt. The officers’ testimony about the entire sequence of events from their perspectives served to create a contextual explanation for how the officers could be certain they had arrested the correct individual.
¶17 It appears easy enough, when reviewing the transcripts of the
officers’ testimony, to excise the brief portions of testimony referring to
other guns. However, as the trial court
recognized during the motion in limine
hearing, and as the postconviction court explained, “it would have been extremely
limiting for the officers to trim their testimony and not provide an overall
picture of what they encountered in the home.”
See Dukes, 303
¶18 Further, the entire sequence of events goes not only to the question
of Deramus’s possession of a firearm, but to the obstruction charge as well. “[E]vidence of flight and resistance to arrest
has probative value as to guilt.” State
v. Miller, 231
II. Admissibility of Evidence,
Prejudice Grounds
¶19 Deramus also argues that even if the evidence of the other weapons was admissible, the court nevertheless erred by not excluding the evidence because it was unfairly prejudicial. He asserts prejudice is shown by a question the jury sent to the court during deliberations asking, “if a felon was aware of the existence of a weapon and it was within his reach is this considered possession of a firearm?”[7] The prejudice is further shown, Deramus claims, by the fact that the jury convicted him of possession, but not concealment.
¶20 First, it is not clear that the evidence, considered in context, is prejudicial. Although two officers testified they had found guns inside the home, the officers also testified that those additional guns were not linked to the defendant. In addition, the State emphasized in its own opening and closing statements that the additional guns were not the ones for which Deramus was charged.
¶21 Second, the court properly gave a cautionary instruction to the
jury, advising jurors that they “heard some testimony about other guns being
located inside the house. Mr. Deramus is
not charged … with respect to any other weapons found in the house or on that
date. The only weapon that he is charged
with possessing is [the Intratec, introduced as Exhibit 10] and that is the
only weapon you should consider[.]” We
presume jurors follow the court’s instructions.
State v. Adams, 221
¶22 Third, the jury’s question and the split verdict are entirely consistent with theories put up by defense counsel. The Intratec gun was recovered on the ground, close to some bushes and next to a beer bottle. Counsel tried to establish, through cross-examination, that perhaps the gun—which was recovered with mud in and on the barrel—had been on the ground and it was the bottle, not the gun, that they had observed Deramus drop. The jury’s question is quite logical in this context, attempting to ascertain whether, even if they believed the gun was already on the ground, Deramus could nevertheless be deemed in possession of it.
¶23 Indeed, the jury instruction advises, in part, that an item is
“in a person’s possession if it is in an area over which the person has control
and the person intends to exercise control over the item.” See
¶24 The split verdict is also wholly logical in context of both the defense theory posited above and the testimony as a whole. If the jury was subscribing to the defense theory that the weapon was already on the ground, they could not call the weapon concealed. Alternatively, while officers testified that Deramus pulled the weapon from his waistband area, at least one officer testified he did not see the weapon until Deramus actually had it in his hand. The jury could therefore accept the latter testimony and conclude that Deramus had possession of a weapon without also having to accept that he had concealed it.
¶25 Neither the jury’s question nor the split verdict persuades us that the additional gun evidence was unfairly prejudicial and subject to exclusion. The court did not erroneously exercise its discretion.
III. Ineffective Assistance of
Counsel
¶26 Deramus also alleged that counsel was ineffective for failing to object to the additional gun evidence on relevance grounds, and for failing to object to evidence of a “shooter’s nest” on any grounds. The postconviction court determined this evidence would have been admitted over any objection and, therefore, counsel was not ineffective. We agree.
¶27 To demonstrate ineffective assistance of counsel, Deramus must
show that counsel’s performance was deficient, and that the deficiency prejudiced
the defense. See Strickland v. Washington,
466
¶28 Deramus also complains that counsel should have been prepared for the “shooter’s nest” testimony, in light of a reference to the term in the criminal complaint. As with the other gun evidence, Deramus complains of unfair prejudice and irrelevance.
¶29 The only testimony about a “shooter’s nest” came from Officer Rodolfo Gomez. He was explaining the pursuit of Deramus, and testified as follows on direct examination:
Q You check the attic. How long does that take?
A It was pretty quick, a minute at the most.
Q No one in the attic?
A No, ma’am.
Q Do you see anyone flying out windows off the top of the building or anything like that?
A No. The windows were barricaded with mattresses and cardboard.
Q Up in the attic?
A Yes. It was a shooter’s nest, as I would describe it, up there.
Q Okay. So no one is in the attic. And now you come back downstairs. …
¶30 This is the only “shooter’s nest” reference; none of the other
officers used the term and the State did not use it in any of its arguments. Although the term might be slightly
inflammatory—assuming jurors knew its meaning—we are not persuaded that the
evidence is unfairly prejudicial, particularly in light of the probative value
of Gomez’s testimony. A description of
the barricaded windows was relevant to the identification issue, explaining how
officers went through the home and cleared the third floor and knew their black-shirted
suspect did not leave through an attic window.
Because the description of the area was relevant, it would have been
admissible over counsel’s objection.[9] Counsel is therefore not deficient for
failing to make the objection. See Anderson, 288
By the Court.—Judgment and order affirmed.
This opinion shall not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The Honorable Jeffrey A. Kremers presided over the trial and entered the judgment of conviction. The Honorable Kevin E. Martens entered the order denying the postconviction motion.
[2] The home was a duplex-style house, with separate residences on the first and second floors.
[3] After Deramus made this claim, one of the officers felt the television that was in the room and noted that it was cool to the touch, suggesting it had not been recently turned on.
[4] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[5] Wisconsin Stat. § 901.04(1) states, in relevant part, only that “[p]reliminary questions concerning … the admissibility of evidence shall be determined by the judge ....”
[6] Deramus’s flight also raises a question of why he attempted to flee by going inside the house, rather than attempting to elude officers outside, in the dark. The State suggests it may have been precisely because Deramus knew weapons were in the home. Although this is a provocative theory, it is largely speculative.
[7] The court responded, with the parties’ agreement, by advising the jury to re-read the instruction on possession.
[8] The fact that it was given separately from other instructions may actually have served to emphasize the instruction’s importance, rather than diminish it.
[9] Counsel may also have made a strategic decision to forgo an objection so as to avoid calling attention to the term.