COURT OF APPEALS DECISION DATED AND FILED January 14, 2010 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 IV |
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State of
Plaintiff-Respondent, v. Ivan C. Mitchell,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Dykman, P.J., Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Ivan Mitchell appeals from an order denying his postconviction motion. We affirm.
¶2 Mitchell was convicted of several felonies, including first-degree intentional homicide, after a jury trial. This appeal arises from the denial of a postconviction motion filed under Wis. Stat. § 974.06 (2007-08).[1]
¶3 All of Mitchell’s arguments are based on a legal theory of
ineffective assistance of counsel. To establish ineffective assistance of counsel a
defendant must show that counsel’s performance was deficient and that such
performance prejudiced his defense. Strickland
v.
¶4 Mitchell first argues that his trial counsel was ineffective by not renewing at trial a pre-trial request to sever his joint trial from that of co-defendant Leshaun Benson. Mitchell originally moved for severance to prevent a situation in which Benson might decline to testify at trial, and thus not be subject to cross-examination by Mitchell about statements police claimed Benson made to them implicating Mitchell. See Bruton v. United States, 391 U.S. 123 (1968) (similar situation violated defendant’s right to cross-examination). The court denied the motion after the State agreed to proceed without Benson’s references to Mitchell.
¶5 Mitchell argues that counsel should have renewed the request because events at trial were different than originally expected. At trial, when called as a witness by the defense, Benson testified to having an alibi at the time of the shooting, while continuing to implicate Mitchell in the crime. On cross-examination, the State asked Benson about whether he made certain statements to police, including the parts that inculpated Mitchell, but Benson denied having made many of the statements. Then, in its rebuttal case, the State presented the testimony of detectives who described Benson’s statements.
¶6 Mitchell argues that his counsel should have sought severance because Benson’s denial of having made the statements deprived Mitchell of the right to meaningful cross-examination of Benson about the statements, and therefore severance was the only way to prevent Benson’s statements from being considered by the jury without cross-examination.
¶7 As to deficient performance, we conclude that counsel’s performance was not deficient, because there was little reason for counsel to think such a severance motion would have been granted. The situation as it unfolded at trial was not a Bruton situation. Benson did testify, and was available for cross-examination by Mitchell about the statement used by the State.
¶8 As to prejudice, Mitchell explains in detail how Benson’s statements were prejudicial to Mitchell, but he is silent as to what Benson could have said on cross-examination that would have assisted Mitchell’s cause more than what actually occurred at trial. As we understand Mitchell’s argument, he believes Benson could not effectively be cross-examined because Benson denied making the statements that implicated Mitchell. This leaves us asking, what more could Mitchell hope to achieve on cross-examination? If Benson entirely denied making the statements, it is difficult to see how Mitchell could obtain a result better than this complete repudiation. It is important to recall that Mitchell is not entitled to exclusion of Benson’s statements under all circumstances, but only to preserve his right to cross-examine Benson and try to shake the jury’s confidence in their truth. Here, Benson himself testified, in essence, that the jury should have no confidence in any of it.
¶9 Mitchell next argues that his trial counsel was ineffective by not requesting a lesser-included instruction on felony murder. Most of his argument is directed at counsel’s alleged failure to discuss with Mitchell whether such a request should have been made. For example, in disputing the circuit court’s conclusion that Mitchell pursued an “all-or-nothing” defense, he states that a more accurate recitation would be that counsel pursued such a strategy while Mitchell remained oblivious to the option.
¶10 Mitchell appears to assume it is the defendant, not counsel,
who must make the decision on whether to ask for a lesser-included
instruction. This is generally not
correct. In State v. Ambuehl, 145
Wis. 2d 343, 355 n.4, 425 N.W.2d 649 (Ct. App. 1988), we quoted from the ABA Standards for Criminal Justice,
Standard 4-5.2, commentary (2d ed. 1980), which opined that the defendant
should be the one to decide. However, we
later concluded that Ambuehl did not actually adopt that
standard, and we held that the decision to ask for the instruction is generally
counsel’s. State v. Eckert, 203
a defendant does not receive ineffective assistance where defense counsel has discussed with the client the general theory of defense, and when based on that general theory, trial counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with, or harmful to, the general theory of defense.
¶11 The test for deficient performance is an objective one that
asks whether trial counsel’s performance was objectively reasonable under
prevailing professional norms. State
v. Kimbrough, 2001 WI App 138, ¶¶31-35,
246
¶12 Here, Mitchell makes little argument as to why it was unreasonable for trial counsel to decline to pursue the lesser-included instruction. Indeed, he concedes that the circuit court was “correct in stating that Mitchell’s testimony did not interlock well with a charge of felony murder.” While it might have been reasonable for counsel to request the instruction, Mitchell has not convinced us that it was not also reasonable to forego the instruction and seek complete acquittal.
¶13 Finally, Mitchell argues that his trial counsel was ineffective
by not filing a suppression motion based on what Mitchell claims was his
illegal stop and arrest. As prejudice,
Mitchell argues in a single sentence that the incriminating statements police
took from him were derivative of that stop and arrest. However, the one case he cites concerns
suppression of lineups and identifications, not statements. State v.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.