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COURT OF APPEALS
DECISION
DATED AND FILED
November 17, 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 I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Manuel Cucuta,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: JEFFREY
A. WAGNER, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Manuel Cucuta appeals from
an order following an evidentiary hearing on remand denying his petition for a
writ of habeas corpus seeking a new trial.
The issue is whether the reconstructed record was adequate to deny Cucuta’s petition, or
whether the inadequacy of the record entitles him to a new trial. We conclude that the reconstructed record was
adequate; however, from that record Cucuta
has not demonstrated that a juror was sleeping during his trial, much less that
that allegedly sleeping juror prejudiced his right to a fair trial. Therefore, we affirm.
¶2 A jury found Cucuta
guilty of two counts of first-degree intentional homicide. At sentencing, Cucuta’s stepfather Frederick James Berg
addressed the trial court, and in the course of his sentencing remarks, Berg
expressed frustration that a female juror had slept during the testimony. The trial court responded that it would not
address the sleeping juror accusation.
The trial court imposed two life sentences without the possibility of
parole. Cucuta sought postconviction relief on an
unrelated issue, which the trial court denied.
This court affirmed the judgment of conviction and the postconviction
order on direct appeal. See State v. Cucuta,
No. 2000AP2874-CR, unpublished slip op. at 16 (WI App Sept. 11, 2001).
¶3 Cucuta
then petitioned for a writ of habeas corpus.
For the first time since Berg’s sentencing remark and the trial court’s
refusal to address that remark, Cucuta
raised the issue of the sleeping juror.
The trial court summarily denied the petition. Cucuta
appealed, and we reversed and remanded the cause for an evidentiary hearing to
determine the necessity and feasibility of reconstructing a particular part of
the record involving the allegedly sleeping juror to determine whether that
juror deprived Cucuta
of his right to a fair trial. See State v. Cucuta,
No. 2005AP777, unpublished slip op. at 2 (WI App Feb. 12, 2007). Our reversal and remand on the sleeping juror
issue was guided by State v. Hampton, 201 Wis. 2d
662, 673, 549 N.W.2d 756 (Ct. App. 1996).
See Cucuta,
No. 2005AP777, unpublished slip op. at 3-4.
The trial court conducted that evidentiary hearing and issued its
findings of fact and conclusions of law denying the habeas corpus petition. Cucuta
appeals, now contending that it was no longer feasible to adequately
reconstruct the record to demonstrate that a juror was sleeping, and that that
sleeping juror deprived him of a fair trial.
¶4 In support of his habeas corpus petition, Cucuta
averred that he “personally observed a female juror, seated in the back row of
the jury box, sleeping during the testimony of Alejandro Vallejo, one of Cucuta’s alleged
accomplices and a principal witness for the State. Cucuta
told his trial counsel, who alerted the trial court with a note. The trial court then directed the bailiff to
wake that juror and offer her a glass of water.” Cucuta,
No. 2005AP777, unpublished slip op. at 2.
¶5 At the evidentiary hearing on remand (“remand hearing”), all
of the women who had served as jurors for Cucuta’s
trial were subpoenaed because Cucuta
identified the sleeping juror as “a female juror.” Each former juror was questioned by the trial
court and by Cucuta’s
postconviction counsel. Each juror was asked whether they recalled
serving as a juror for Cucuta’s trial, whether anything distracted them during
that trial, specifically from listening to the testimony, whether they “nod[ded]
off, in other words, g[o]t sleepy or … observe[d] any other juror get sleepy,”
and some were specifically asked if they “recall[ed] anybody getting a glass of
water or anything of that nature during the course of the testimony.” Each recalled the trial, but none of them
responded that they were distracted or remembered that they or any other juror
“nod[ded] off … or … g[o]t sleepy.”
¶6 Cucuta
then presented evidence from his trial counsel, his private investigator, and
the man who served as the bailiff during the jury trial. Cucuta
also testified himself. Berg did not
testify.
¶7 Cucuta’s trial counsel
testified that he thought that Cucuta
had alerted him that a juror was sleeping.
Once alerted, trial counsel then alerted the trial court judge who
directed the bailiff to give that juror a glass of water. Trial counsel testified that “[t]he only
thing I truly recollect is watching what I think was a woman juror in the back
row as the bailiff stood there and handed her a glass and [I watched her as]
she drank it.”
¶8 The defense investigator testified as to her previous
interview of the bailiff, and the investigator recounted that the bailiff had
told her that “during the trial that he was asked by the court to give a
sleeping juror a glass of water.” The
bailiff testified that he “remember[ed] that [he] was alerted to give somebody
some water and that’s what [he] did” and that that was the totality of his
recollection of Cucuta’s
trial.
¶9 Cucuta
testified that Berg had alerted him during a recess that a juror had been
sleeping during the trial. Cucuta
further testified that he personally observed a Caucasian woman juror sleeping
during the testimony of Alejandro Vallejo, and that he alerted trial counsel,
who alerted the trial court, who directed the bailiff to take that juror a
glass of water.
¶10 The trial court’s factual findings on the subpoenaed jurors, defense
counsel, the defense investigator, and the bailiff were consistent with their
testimony. The trial court found Cucuta’s testimony to be
“evasive … non-responsive” and “not credible.”
The trial court then found from Cucuta’s
testimony that if a juror had been sleeping during the trial, it would have had
to have been during the re-cross examination of Vallejo.
Although the trial court found that “no juror was involved in any
inattentiveness based upon either sleepiness or drowsiness,” it further found
“that if any of the above re-cross examination testimony was missed, based upon
the limited nature of that testimony as to issues covered during cross
examination, no prejudice would have occurred to the defendant,” citing
Hampton, 201 Wis. 2d at 673.
¶11 “The trial court must determine, in light of the whole
proceeding, whether the claimed error is sufficiently prejudicial as to warrant
a [new] trial.” State v. Hampton, 217 Wis. 2d 614, 621, 579
N.W.2d 260 (Ct. App. 1998). We apply a
mixed standard of review to these types of determinations. See id. We will not reverse the trial court’s factual
findings unless they are clearly erroneous, however, whether Cucuta received a fair trial is an
independent determination we review as a matter of law. See id.
¶12 We conclude that the trial court’s findings of fact are not
clearly erroneous. It is the trial
court’s obligation to reconcile conflicting evidence and determine the
witnesses’ credibility. See Johnson
v. Merta, 95 Wis.
2d 141, 151-52, 289 N.W.2d 813 (1980). As
we reasoned in Hampton,
when the trial court found the testimony of the defendant and his counsel less
credible than that of the bailiff and the juror, the “[credibility]
determination [wa]s sound as both [the defendant] and his counsel had an
interest in the outcome. The bailiff and
the juror did not.” See Hampton, 217 Wis. 2d at 623. As we acknowledged in Hampton, “[w]e are not empowered to
substitute our own credibility determinations for those made by the trial
court.” Id. (citing
Merta,
95 Wis. 2d at
152).
¶13 In Hampton, the remand hearing was to develop a record on whether
the sleeping juror deprived Hampton of his right to a fair trial; the remand
hearing in Cucuta was to also and preliminarily determine whether there
was a juror who “nod[ded] off” or slept during the trial. Cucuta
has not proven that preliminary fact on which the alleged deprivation of a fair
trial depends. The trial court’s factual
findings that “no juror was involved in any inattentiveness based upon either
sleepiness or drowsiness” is not clearly erroneous. We cannot proceed to analyze prejudice
without a sleeping or inattentive juror to cause that prejudice.
¶14 There was no contemporaneous record of the juror who was
allegedly inattentive or sleeping during the trial. Without objecting to and making a record of
that juror’s inattentiveness, there was no issue for appellate counsel to
pursue in the original postconviction motion or on direct appeal. Notwithstanding the absence of an objection
and a record on this issue, we ordered a remand and the appointment of counsel
to permit Cucuta
to reconstruct the record on this issue.
Each woman who served on Cucuta’s
jury was subpoenaed and questioned on the inattentiveness issue. Cucuta
then presented those additional witnesses he deemed necessary to prove his
claim that was dependent upon the preliminary and necessary proof that a juror
had been inattentive or sleeping during the testimony. The trial court found that Cucuta did not meet that preliminary and
necessary showing. That finding is not
clearly erroneous. Without a showing of
a juror’s inattentiveness there can be no showing of prejudice. Our affording Cucuta the opportunity to belatedly
reconstruct the record does not negate his burden to prove that he is entitled
to a new trial. He has not met that
burden.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5. (2007-08).