COURT OF APPEALS DECISION DATED AND FILED May 25, 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 I |
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State of Plaintiff-Respondent, v. Jamie D. Bowens, 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. Jamie D. Bowens appeals a judgment convicting him of first-degree intentional homicide and felon in possession of a firearm. He also appeals an order denying his motion for a new trial. Bowens argues that he received ineffective assistance of trial counsel. We affirm.
¶2 To prove a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient and that the
deficient performance prejudiced the defense.
Strickland v.
¶3 A court need not address “both components of the inquiry if
the defendant makes an insufficient showing on one.” Strickland, 466
¶4 Bowens’ claim of ineffective assistance of trial counsel fails because he has not shown that he was prejudiced by counsel’s allegedly deficient acts. Bowens contends that his attorney should not have called Jennifer Garcia as a witness for the defense. Even if we agreed that counsel performed deficiently by calling Garcia, Bowens has not shown that calling Garcia actually had an adverse effect on the defense.
¶5 The State presented overwhelming evidence that Bowens shot and killed Jadrian Parker during a dispute over a gun. The State called four eyewitnesses, all of whom identified Bowens as the person who shot Parker. Dominick Johnson testified that on the evening of the murder, he was at his mother’s house with Parker, who was the victim, Ryan Smith, Lance Pinkins, Rashed Hampton and Suave Smith. Johnson testified that Parker refused to return a gun that someone had shown him, causing an argument. Johnson testified that Parker and Pinkins left the house as the argument escalated, so he followed them, along with Hampton and Suave Smith. While they were pursuing Parker and Pinkins, he gave his phone to Hampton, who used it to make several calls.
¶6 Johnson further testified that his mother, Magdalena Goodlow, pulled up in her car to the location where they had caught up to Parker and Pinkins down the street from a church. Johnson testified that his mother tried to break up the dispute, but that Parker was arguing with everyone. Johnson testified that Bowens then arrived in a car, and that he asked for the gun Parker had taken. Bowens got angry because Parker and Pinkins would not return the gun. Bowens attempted to shoot Pinkins, but Bowens’ gun jammed, so Bowens hit Pinkins with the gun instead. Bowens then shot Parker, who was only a couple of feet from Bowens. Johnson saw two shots hit Parker, then he turned away. He heard the gun fire three times.
¶7 Goodlow testified that on the night of the murder she received a text message that there was a fight over a gun, so she drove to the scene of the dispute on a street near her home with Jason Davis, who was her boyfriend. She knew all of the people involved in the argument; her son, Johnson, his friends Hampton and Suave Smith, the victim, Parker, and her god-brother Pinkins. She tried to break up the fight, telling them they were drunk and should stop. She then testified that Bowens, who she did not know, arrived at the scene in a car, that he demanded that the gun be returned and, that when it was not given to him, shot Parker repeatedly at close range.
¶8
¶9 Pinkins testified that a large group of people were gathered at Goodlow’s house the night of the murder. Johnson and Parker got into an argument over a gun that Parker would not return. Pinkins testified that he left Goodlow’s house with Parker to go to the home of Pinkins’ “little guy,” but never got there because Johnson, Hampton and Suave Smith followed them and stopped them on the street near a church. Bowens then arrived, carrying a gun, and told them to return the gun Parker had taken. Pinkins testified that Bowens pointed the gun at his legs and pulled the trigger, but the gun jammed so he was not shot. He and Bowens began a “tussle” over the gun and, when Bowens gained control of the gun, he stepped back and shot Parker five or six times from two or three feet away.
¶10 In addition to the four eyewitnesses, the State called Frank
and Katherine Shaw, from
¶11 In addition to the testimony of these six witnesses, who either saw Bowens commit the murder or heard Bowens admit committing the murder, the State presented the testimony of Melissa Marchant, an expert witness from the Department of Justice, linking Bowens to the dispute on the night of the murder. Marchant testified she reviewed the cell phone records of Johnson and Bowens and that six calls were made from Johnson’s phone to Bowens’ phone shortly before the murder, corroborating the witnesses’ testimony that Bowens arrived on the scene due to the dispute over the gun. The State also presented physical evidence in the form of shell casings linking Bowens to the crime. A police detective testified that three shell casings were recovered from the murder scene that were fired from the same gun as an older shell casing found near Bowens’ garage.
¶12 Simply put, the State presented overwhelming direct and circumstantial evidence that Bowens murdered Parker. Although Bowens’ defense was that he was at home preparing for his daughter’s birthday party, four witnesses testified for the State that they saw Bowens shoot Parker. Two witnesses from another state, who were completely unconnected to Bowens or the other people involved, testified that Bowens confessed to them. Bowens was also linked to the crime by circumstantial evidence, the shell casing and cell phone records.
¶13 Bowens’ claim of ineffective assistance of counsel focuses on the testimony of Garcia, the first witness called by the defense. Garcia identified Bowens as the person who shot Parker, which Bowens contends bolstered the State’s case and adversely affected his defense. He contends that “[t]he jury could well have found the state witnesses unbelievable but for the corroboration by the defense witness Jennifer Garcia.”
¶14 At the postconviction motion hearing on the claim of ineffective assistance of trial counsel, Bowens’ trial attorney explained that he called Garcia because she had called him and told him that she did not see how anybody could see who the shooter had been. He also knew she was combative, based on her behavior during a prior court appearance. Counsel believed she would help Bowens’ case, whether she admitted she called him or not, because she would either admit she had called him to say that she did not believe that anybody could see who the shooter was or, if she denied calling him, the jury would not believe her anyway due to her demeanor.
¶15 Regardless of whether counsel’s decision to call Garcia constituted deficient performance, an issue we need not decide, our review of the trial transcripts convinces us that Bowens cannot show prejudice; he cannot show that Garcia’s identification of him as the shooter actually had an adverse effect on the defense. To assess whether Garcia’s testimony actually had an adverse effect on the defense, we look at her testimony against the backdrop of the other testimony and evidence presented at trial. Garcia was not a credible witness; she was argumentative, she contradicted herself repeatedly and was apparently behaving in such an odd manner that even the prosecutor discounted her testimony in closing. Garcia’s brief testimony was inconsequential in the context of the overwhelming case the State built against Bowens. We conclude that Garcia’s testimony was simply too lacking in credibility and substance to have prejudiced the defense.
¶16 Bowens argues that Garcia’s testimony adversely affected the defense because the State’s witnesses had issues relating to credibility. We disagree with Bowens’ assessment of the State’s witnesses. Bowens contends Johnson lacked credibility because he was smoking marijuana the night of the murder and failed to mention in the statement he originally gave to the police that Bowens had told him to not say anything about the crime. Our review of Johnson’s testimony shows that he provided detailed, comprehensive and consistent answers to the questions put to him at trial about everything that occurred the night of the shooting. Bowens questions Goodlow’s credibility because she said she could not make a definite identification of Bowens at trial. However, Goodlow identified Bowens from photos shortly after the crime occurred, when her memory was fresh. The fact that she could not identify him with certainty at trial does not undermine her credibility or her identification immediately after the crime occurred. To the contrary, it shows that she carefully answered questions asked of her on the witness stand.
¶17 Bowens argues that
¶18 In sum, the State’s evidence against Bowens showed beyond a reasonable doubt that he murdered Parker. The witnesses’ testimony all led to this conclusion, and the physical evidence presented by the State corroborated the witnesses’ testimony. Bowens has not shown that Garcia’s identification of him had an adverse effect on his defense because he has not shown that the result of the trial would have been different had she not testified. Therefore, we reject Bowens’ claim of ineffective assistance of counsel because he has not shown that he was prejudiced by his attorney’s decision to call Jennifer Garcia as a witness.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The Honorable Jeffrey A. Wagner entered the judgment of conviction and imposed sentence. The Honorable Jeffrey A. Conen entered the order denying Bowens’ postconviction motion.