COURT OF APPEALS DECISION DATED AND FILED November 24, 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 I |
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State of Plaintiff-Respondent, v. 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. Lawrence C. Paine appeals from a corrected judgment of conviction for two counts of first-degree intentional homicide, and from an order denying his postconviction motion following a Machner hearing.[1] The issue is whether trial counsel’s subjective reasons for failing to call two particular witnesses in Paine’s defense constituted ineffective assistance. We conclude that trial counsel’s performance in failing to call these two witnesses at trial was not deficient; therefore, Paine did not receive ineffective assistance of counsel. Consequently, we affirm.
¶2 Paine was originally charged with two counts of first-degree reckless homicide for the shooting deaths of Janari Saddler and Aaron Harrington. We set forth the facts from our previous decision on direct appeal:
[T]wo men died as a result
of being shot multiple times in the upstairs flat of a Milwaukee duplex. According to a witness who said he was
present in the flat at the time of the shootings, one of the victims, Janari
Saddler, got into a discussion about a parked car with a person the witness
knew as “Chan.” Apparently “Chan” had
parked a car, which Saddler thought was stolen, in front of the duplex which
was also where Saddler lived. Ultimately
“Chan” became upset with Saddler for continuing to talk about the car, pointed
a gun at Saddler, followed a retreating Saddler into the bedroom and,
thereafter, the witness heard multiple gunshots. The witness then heard the other victim, Aaron
Harrington, yell “Don’t kill me!” followed by more gunshots. The witness then ran out of the building. Upon his return to the flat shortly
thereafter, the witness saw the two bodies, one in the bedroom and one in the
bathroom, and he left the flat again, this time calling 9-1-1 from another
house. The witness subsequently
identified a photograph of Paine as the person who he knew as “Chan.” Another witness, who also said he was present
in the flat at the time of the
shootings, likewise identified Paine from a photograph as someone he knew as
“Chan.” Paine’s middle name is Chan. The second witness described the events
preceding the shootings in a substantially similar manner, although his account
was not identical to the account given by the first witness. There was no physical evidence tying Paine to
the murders.
Paine’s theory of defense, as described
specifically in the postconviction motion, was that he was not at the duplex
that evening, but rather was first at a strip club with another friend he knew
as “Skin,” and that after he dropped Skin off for the night, Paine then left
for Minneapolis to visit his young son who lived there with his son’s mother. To support his statements to police, Paine
provided police with Skin’s cell phone number.
State v. Paine, No. 2006AP2634-CR, unpublished slip op. ¶¶2-3 (WI App Nov. 6, 2007).
¶3 The first trial resulted in a hung jury. The State re-tried Paine and the jury found
him guilty of two counts of first-degree intentional homicide. The trial court imposed two sentences of life
imprisonment and declared Paine ineligible for extended supervision. In a postconviction motion, Paine alleged
that his trial counsel was ineffective for failing to call two witnesses in
Paine’s defense, Anthony Mendez Blackman (also known and hereinafter referred
to as “Skin”) and Zenobia Davis. The
trial court summarily denied the motion, and we remanded the matter for a Machner
hearing on trial counsel’s “failure to investigate and to call
¶4 On remand, the trial court conducted a Machner hearing at which
the following people testified: Skin’s
mother Ella Blackman and the private investigator retained by the defense prior
to trial, William Garrott.[2] Skin did not testify, as he had died prior to
the Machner
hearing.
¶5 To prevail on an ineffective assistance claim, the defendant
must show that trial counsel’s performance was deficient, and that this
deficient performance prejudiced the defense.
See Strickland v. Washington, 466
¶6 The trial court found, based on trial counsel’s testimony at the Machner hearing, that trial counsel hired “an experienced and aggressive investigator in attempts to find ‘Skin.’” The investigator’s efforts included: going to the neighborhood where Paine told trial counsel that Skin lived, knocking on doors and inquiring about Skin to people in that neighborhood, going to the Paradise Strip Club where Paine claimed he was on the night of the shootings to talk with potential witnesses and determine whether the club had videotapes or photographs, and viewing the club’s videotapes. The investigator also went to the gasoline station where Paine claimed to have stopped that night or early the next morning. The investigator also reviewed the information developed by law enforcement about Skin.
¶7 The trial court’s factual findings on trial counsel’s efforts
to locate Skin were not clearly erroneous.
We affirm the trial court’s factual findings that trial counsel’s
efforts, albeit unsuccessful, to locate Skin did not constitute deficient
performance. Paine’s inability to
demonstrate that the trial court’s factual findings were clearly erroneous
renders an assessment of prejudice unnecessary.
See Moats, 156
¶8 The other witness Paine contends should have been called to
testify was
¶9
¶10 At the Machner hearing, trial counsel admitted that had Davis testified in Paine’s defense, she would have corroborated Skin’s existence (as opposed to Paine having made Skin up to provide himself with an alibi), and corroborated Skin’s fear in talking with police. Although Davis attended Paine’s trial, trial counsel testified that he did not compel Davis’s testimony because: (1) she did not want to testify; (2) he did not believe that Davis’s testimony would be helpful to the defense; (3) he did not believe that Davis would be “very effective on the witness stand”; and (4) he did not know “what she had to offer [or] how [he] was going to exactly get that in.”
¶11 We review the trial court’s findings on trial counsel’s
performance in failing to call
¶12 We review trial counsel’s reasoning to determine whether it was
objectively reasonable. See McMahon,
186
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).
[1] The
Honorable David A. Hansher presided over the jury trial, imposed sentence and
entered the judgment and corrected judgment of conviction. The Honorable Jeffrey A. Wagner presided over
the Machner
hearing and entered the postconviction order.
A Machner hearing is an evidentiary hearing to determine trial
counsel’s effectiveness.
[2] Ella Blackman testified briefly to establish that her son and Paine were friends, and that her son was now dead, presumably to establish his unavailability.