COURT OF APPEALS DECISION DATED AND FILED July 15, 2010 A.
John Voelker Acting 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 IV |
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State of
Plaintiff-Respondent, v. Renardo L. Carter,
Defendant-Appellant. |
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APPEAL
from a judgment and order of the circuit court for
Before Dykman, P.J., Lundsten and Higginbotham JJ.
¶1 PER CURIAM. Renardo Carter appeals from a judgment, entered after a jury verdict, convicting him of eluding and obstructing an officer, and possession with intent to deliver between five and fifteen grams of cocaine, all three counts as a habitual offender.[1] Carter also challenges the order denying his motion for postconviction relief. Carter argues the admission of what he claims was inadmissible hearsay deprived him of a fair trial. Carter also challenges the sufficiency of the evidence to support his conviction for possession with intent to deliver between five and fifteen grams of cocaine. We reject these arguments and affirm the judgment and order.
Background
¶2 The State charged Carter with four crimes as a repeat offender: possession with intent to deliver between fifteen and forty grams of cocaine; recklessly endangering safety; eluding an officer; and obstructing an officer. A jury acquitted Carter of recklessly endangering safety, but found him guilty of eluding and obstructing an officer. The jury also found Carter guilty of possession with intent to deliver cocaine, in an amount of between five and fifteen grams. The court imposed consecutive and concurrent sentences totaling ten years’ initial confinement and six years’ extended supervision. The trial court denied Carter’s motion for postconviction relief after a Machner[2] hearing and he appeals.
Discussion
¶3 Carter argues he was denied a fair trial by a narcotics officer’s testimony recounting his conversation with a confidential informant, in which the informant identified Carter as a drug dealer and arranged to purchase cocaine in quantities of “teeners.” Specifically, Carter claims the testimony was inadmissible hearsay that violated his right of confrontation. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Wis. Stat. § 908.01(3) (2007-08).[3]
¶4 As the State recounts, it sought to call the informant as a witness at trial but his testimony was excluded during the State’s case-in-chief. The parties agreed, and the trial court ruled, however, that the State would be allowed to present limited testimony from the officer regarding his contact with the informant. That testimony would be presented not for the truth of the matter, but only to explain its effect on the listener.
¶5 At trial, the officer testified that on the day of Carter’s arrest, the officer met with the informant outside of an Econo Lodge Hotel. As Carter exited the hotel and proceeded to his vehicle, the informant identified him as an individual involved in distributing controlled substances. The officer then directed the informant to telephone Carter and indicate his interest in purchasing cocaine in quantities of “teeners”—a teener being one-sixteenth of an ounce. The informant called Carter in the officer’s presence and the officer observed Carter both answer his cellular phone and hang up at the end of the conversation. During the informant’s conversation with Carter, the officer heard the informant make the buy request.
¶6 The officer continued his surveillance of Carter’s vehicle, but relayed the vehicle’s description and license number to the officer who ultimately pursued and apprehended Carter. When Carter later left in his vehicle, the narcotics officer followed him and informed the arresting officer that the vehicle was on the move. The narcotics officer observed the other officer follow Carter’s vehicle and engage his lights and siren. The narcotics officer also observed Carter’s vehicle increase speed “in an attempt to flee.” Carter failed to object to the narcotics officer’s testimony at trial, but he claims relief is nevertheless warranted under the following three theories: ineffective assistance of counsel, plain error or interest of justice.
¶7 This court’s review of an ineffective assistance of counsel
claim is a mixed question of fact and law.
State v. Erickson, 227
¶8 “The benchmark for judging whether counsel has acted
ineffectively is stated in Strickland v. Washington, 466
¶9 In order to establish deficient performance, a defendant must
show that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
¶10 The prejudice prong of the Strickland test is
satisfied where the attorney’s error is of such magnitude that there is a
reasonable probability that, absent the error, the result of the proceeding
would have been different.
¶11 At the Machner hearing, trial counsel testified he did not object to the narcotics officer’s testimony regarding the confidential informant because in his opinion, the testimony was not objectionable, not offered for the truth of the matter asserted, not inadmissible hearsay and did not violate Carter’s rights. As counsel explained:
My conclusion was … the testimony was regarding verbal conduct that [the officer] was observing. And then at the same time, he was within eyeshot of Mr. Carter who was on a cell phone. And every time the [informant] would talk and … pause, there would be some type of apparently communicative conduct by Mr. Carter on his end. So it wasn’t really hearsay in the sense that it was being offered for its truth. He was observing verbal conduct, one-half of … what appeared to be a drug transaction. And corresponding conduct by Mr. Carter that he concluded … was in response to what the [informant] was saying.
When asked to clarify his belief that information about the request to purchase “teeners” was not offered for the truth of the matter asserted, counsel replied:
It was a direct observation of statements that the officer heard made by the confidential informant and then statements that were resulted in a response by Mr. Carter. So it wasn’t hearsay in the sense that he was trying to say that there was some external fact that was true. He was simply overhearing half of a drug transaction.
¶12 Citing lower court federal case law, Carter disputes his trial
counsel’s professional assessment. The
federal cases cited, however, are not precedent in
¶13 Carter cites State v. Britt, 203
¶14 Here, however, the officer’s testimony about what he actually
observed and overheard while with the informant was not offered to establish
that Carter was selling drugs but, rather, provided background information for
the jury to understand why the police tried to stop Carter’s vehicle and chased
him when he sped away. We have held that
when evidence is offered for the limited purpose of explaining the actions of
investigating officers, it is not hearsay.
State v. Hines, 173
¶15 Carter alternatively invokes the plain error doctrine. “Nothing … precludes taking notice of plain
errors affecting substantial rights although they were not brought to the attention
of the judge.” Wis. Stat. § 901.03(4).
To invoke the doctrine of plain error, a defendant bears the burden of
showing that the error is fundamental, obvious and substantial. State v. Jorgensen, 2008 WI 60, ¶23,
310
¶16 Finally, Carter claims the evidence was insufficient to prove
that he possessed cocaine with intent to deliver between five and fifteen grams
of cocaine. Whether the evidence
supporting a conviction is direct or circumstantial, we utilize the same
standard of review regarding its sufficiency.
State v. Poellinger, 153
¶17 Trial testimony established that after the police engaged their
emergency lights and siren to initiate a stop of Carter’s vehicle, he sped up
in an attempt to flee. The police
pursued Carter’s vehicle through parts of
¶18 Upon his arrest, the officers observed that Carter had a white powdery substance on his mouth and teeth. Police observed plastic baggies and white residue resembling a powder slick floating in the water. Attempts to retrieve the floating powder failed, but an officer retrieved one rock of crack cocaine as well as twelve cut off corner baggie ends from the water. The baggies retrieved are consistent with baggies that would be packaged as a “teener,” or as an “eight-ball,” which would be one-eighth of an ounce.[4] The baggies also could have contained a larger amount, such as one-quarter and one-half ounce quantities. Because no more than 0.2 grams of cocaine were recovered from the river, Carter argues his conviction for possession with intent to deliver between five and fifteen grams is not supported by the evidence. We disagree and conclude that from the evidence, the jury was entitled to find that Carter possessed between five and fifteen grams of cocaine with intent to deliver.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This is Carter’s second appeal in this matter. In the first, this court reversed the judgment and remanded the matter, enabling Carter to withdraw his no-contest pleas. Upon remand, the State reinstated the original charges and the case proceeded to trial.
[3] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[4] One ounce is equivalent to 28.35 grams. Therefore one-sixteenth of an ounce (.0625) is equal to 1.772 grams, and one-eighth of an ounce (.125) is equal to 3.544 grams.