COURT OF APPEALS DECISION DATED AND FILED August 11, 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 II |
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State of
Plaintiff-Respondent, v. Daryise L. Earl,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. Daryise L. Earl appeals from a judgment convicting him of first-degree intentional homicide and armed robbery, both as party to a crime, and from an order denying his motion for postconviction relief. For the reasons set forth below, we affirm the judgment and order.
¶2 In February 2007, a jury found Earl and his cousin Johnny
Herring guilty of first-degree intentional homicide in the August 2000 death of
Michael Bizzle. Earl brought a
postconviction motion seeking a new trial on grounds of ineffective assistance
of counsel and prosecutorial misconduct. He claimed that his counsel failed to call
four witnesses at trial that would have given testimony deflecting guilt to an
alternative suspect, Michael Nesby, and failed to object to testimony from
Bizzle’s aunt that linked Earl to Bizzle. Earl also argued that he was entitled to a new
trial because prejudicial testimony obtained through prosecutorial misconduct so
tainted his trial as to deprive him of due process. After a hearing pursuant to State
v. Machner, 92
¶3 To prevail on his ineffective assistance of counsel claim,
Earl must satisfy the two-part test of deficient performance and resultant
prejudice articulated in Strickland v. Washington, 466 U.S.
668, 687 (1984); see also State
v. Taylor, 2004 WI App 81, ¶13, 272
¶4 Earl was represented at trial by Attorney Jeffrey Jensen. Earl first contends that Jensen rendered
deficient performance by not calling four people to testify, despite having
included them on the witness list. While
in the
¶5 We conclude that Earl fails to demonstrate deficient performance. Jensen testified at the Machner hearing that by the time of trial in 2007 neither he nor his investigator were able to locate the witnesses. Earl does not show that Jensen’s efforts to locate the men lacked diligence nor does he specify what the missing witnesses would have said. Further, Jensen testified that as a matter of strategy he avoids using “jailhouse witnesses” because they often lack credibility and believed the State’s “weak” case made implicating Nesby unnecessary.
¶6 We “must review an attorney’s performance with great
deference, and the defendant must overcome the strong presumption that counsel
acted reasonably within professional norms.”
State v. Williams, 2000 WI App 123, ¶23, 237
¶7 Earl also asserts that Jensen should have objected to certain
testimony given by Lakeesha Shannon, Bizzle’s aunt.
¶8 We disagree. First,
the trial court said it would have overruled an objection to
¶9 Earl next asserts that he is entitled to a new trial because testimony unfairly prejudicial to him was obtained by dint of prosecutorial misconduct. Herring, Earl’s alleged co-actor, was in custody following his conviction in Bizzle’s murder and indicated his desire to speak to someone. Two prosecutors and police investigator Warmington visited him in jail. The next day, Herring testified under a grant of immunity that Nesby, not Earl, killed Bizzle. The prosecutor asked if he remembered implicating Earl when they talked in jail. Herring professed not to recall. Warmington then took the stand and testified that Herring told him and the prosecutors that Earl robbed and shot Bizzle.
¶10 The prosecutorial misconduct angle to Earl’s claim is that no one ascertained that Herring in fact was represented by postconviction counsel. Earl argued that so egregious an infringement on Herrring’s constitutional rights to counsel and to remain silent poisoned the evidence obtained and thus violated his own due process right to a fair trial. The State responded below that Earl had no standing to challenge violations of Herrring’s constitutional rights but that, even so, the prosecutor’s conduct was not so outrageous as to compromise the integrity of the trial. The trial court concluded that Earl had standing by virtue of his interest in the outcome of his trial but that under the totality of the circumstances, his right to due process was not abridged.
¶11 We do not decide here whether Herring’s constitutional rights were violated or, if so, whether Earl had standing to challenge it. See, e.g., State v. Samuel, 2002 WI 34, ¶¶2, 9, 12, 252 Wis. 2d 26, 643 N.W.2d 423. Instead, we focus only on Earl’s claim that he was denied due process.
¶12 Prosecutorial misconduct can rise to such a level so as to deprive
a defendant of the due process right to a fair trial if the misconduct “poisons
the atmosphere of the trial”; the seriousness of the misconduct and the weakness
of evidence of guilt makes us question the trial’s fairness; and the State
cannot show beyond a reasonable doubt that the error was harmless. State v. Lettice, 205
¶13 We see no erroneous exercise of discretion. Earl has not shown that any conduct by the prosecutor denied him a fair trial. He points to nothing to establish anything but that the prosecutor believed that Herring did not have postconviction counsel. The prosecutor testified that she checked automated circuit court records (CCAP) to determine if he had counsel, believing CCAP to be more current than the paper file. She testified that she saw no entry reflecting the appointment of counsel, and thus concluded he was not represented. She was mistaken. The court found her testimony credible.
¶14 Further, the alleged misconduct could have had no bearing on
the outcome of Earl’s trial. Herring’s
testimony that Nesby killed Bizzle and that Earl was not even present favored
Earl. Although Warmington’s testimony
from his notes of the jail meeting contradicted Herring’s version, it was for
the jury to determine their credibility, as well as of the dozens of other
witnesses who testified over the five-day trial.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.