COURT OF APPEALS DECISION DATED AND FILED December 8, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Guenther Huebner,
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. Guenther Huebner appeals from a
judgment of conviction entered upon a jury’s verdict finding him guilty of
felony theft and of fraudulent tapping of wires/meters/pipes. He also appeals from an order denying his
motion for a new trial based on ineffective assistance of counsel and newly
discovered evidence. His similar arguments
also fail on appeal. We affirm.
¶2 In November 2005, Wisconsin Electric
Power Company, which does business as We Energies, received an anonymous tip
that a natural gas bypass was installed about twenty years ago on Huebner’s residential
property.[1] We Energies fraud investigator Jeff Meyer
questioned him in April 2006; Huebner denied it. Meyer pursued the matter and, in
September 2006, We Energies workers unearthed a “T” splice welded into the gas line
before it reached the meter, thus permitting gas to bypass the meter. In the basement, Meyer observed gas pipes
“going everywhere” and a false wall behind which were a pressure regulator and shut-off
valve to allow unmetered gas to flow with metered gas through the bypass. The altered pipes and valves
were capped when found. Huebner denied any
knowledge of the rigged gas lines. We
Energies estimated that, with tax, $24,276 worth of diverted gas was used between
1974 and 2006.
¶3 The State charged Huebner with felony theft and fraudulent tapping of wires/meters/pipes, a misdemeanor. A jury found Huebner guilty on both counts. Huebner filed postconviction motions for a new trial on grounds of ineffective assistance of trial counsel and newly discovered evidence. After a Machner[2] hearing, the trial court denied the motions and set restitution for the theft and We Energies’ investigation costs at $147,537.08. Huebner appeals.[3]
¶4 Huebner first contends that defense counsel provided
ineffective assistance. To prevail on this
claim, Huebner must show that counsel was deficient and that the deficiency
prejudiced his defense.
¶5 A defendant proves deficiency by showing that counsel’s
conduct fell below an objective standard of reasonableness. Strickland v.
¶6 Ineffective assistance claims present us with mixed questions
of fact and law. Mayo, 301
¶7 Huebner first contends that his privately retained defense counsel’s representation was constitutionally deficient because he failed to consult an expert regarding the energy calculation the State relied on to determine whether, and how large, a theft of natural gas had occurred. Eric Wall, the energy engineer We Energies hired, used a commercially available computer program and his own calculations to project the energy consumption that should have occurred at the Huebner property. Huebner argues that an expert could have countered Wall’s methodology as well as Meyer’s testimony about how he believed Huebner tapped into a high-pressure gas line and created a bypass system.
¶8 Indeed, Huebner located and retained for postconviction
proceedings Thomas Wilson, a self-employed energy consultant specializing in
assessing and upgrading residential energy performance. Wilson, who is not an engineer, testified at
the postconviction motion hearing that Wall’s report struck him as “very wrong”
because even the concept that a computer model can accurately predict energy
consumption is “so outside the realm of building science” as to have no place
in a courtroom.
¶9 The trial court found credible counsel’s testimony that he urged
using an expert at trial but that Huebner declined because of his frugality, his
disbelief in the need and his desire to rely on his own expertise, having at
one time been employed by a company that installed gas lines for a predecessor
entity of We Energies. The court also found
that
¶10 Huebner also posits that counsel had other alternatives, such as asking the court to fund an expert, more thoroughly investigating and educating himself about the case, withdrawing, or moving to exclude Wall’s testimony as speculative. We are not convinced of the viability of any of these options.
¶11 The court stated that it would not have ordered funding for an
expert for a non-indigent defendant.
Failing to raise a meritless challenge is not deficient
performance.
¶12 Huebner next complains that trial counsel’s “inept” cross-examination of State’s witnesses invited damaging testimony that Huebner told others about the bypass. Under counsel’s questioning, a police detective testified that Richard Marek, Huebner’s former brother-in-law, told him that Huebner said he was using the bypass and fraud investigator Meyer testified that he learned from several anonymous sources that he might want to investigate Huebner.
¶13 Marek, who had testified at the preliminary hearing that Huebner told him he had put in a bypass and was getting free gas, was expected to be a witness at trial. Defense counsel testified at the Machner hearing that he intended to deflate the detective’s testimony during Marek’s cross-examination by showing that Marek had a motive to accuse Huebner because of hostility between the two men after he and Huebner’s sister divorced. As it turned out, the State was unable to secure Marek’s appearance. Counsel also testified that he meant to use Meyer’s testimony to argue that anonymous sources do not prove wrongdoing. That Marek ultimately never testified at trial or that the anonymity argument did not carry the day does not render either strategy unreasonable.
¶14 Huebner also argues that trial counsel deficiently abandoned efforts to move for sanctions based on spoliation of evidence. The “T” was spliced into a length of pipe about seventy feet long. The “T” was preserved at the police department until trial but We Energies did not preserve the pipe into which it was spliced. The day before trial, counsel moved to dismiss, arguing that the defense had no opportunity to examine the discarded portion, precluding it from proving its theory that the “T” and the pipe were part of a unit We Energies itself installed in 1969. Counsel renewed the motion the next day. The court denied the motion and invited him to raise it again at the end of the State’s case. Counsel did not.
¶15 A defendant’s due process rights are violated if the State
either: (1) failed to preserve evidence that is apparently exculpatory or (2)
failed in bad faith to preserve evidence that is potentially exculpatory.
¶16 As noted, Huebner’s claim is raised in the context of ineffective
assistance of counsel, not that the trial court erred in denying the motion. Regardless, we are not persuaded. It was We Energies, not the State, that
disposed of the length of pipe to which the “T” was attached. We Energies “[s]aw no reason to” preserve it
because the existence and location of the welded splice were unsafe aberrations
from its typical installation practice.
The discarded pipe was at most only potentially useful to Huebner’s case
and there is no evidence that We Energies destroyed the pipe due to a conscious
effort by the State. Counsel had no
obligation to raise a meritless challenge.
See
¶17 Together or singly, we are satisfied that counsel provided
reasonable explanations for his strategic decisions. We therefore conclude that counsel’s
performance was not deficient. See Strickland, 466
¶18 Huebner next contends he is entitled to a new trial because of
newly discovered evidence presented by both sides at the postconviction motion
hearing. Huebner presented
¶19 A defendant seeking a new trial on the basis of newly
discovered evidence must establish, by clear and convincing evidence, that: (1)
the evidence was discovered after conviction; (2) the defendant was not
negligent in seeking to discover it; (3) the evidence is material to an issue
in the case; and (4) the evidence is not merely cumulative to the testimony
introduced at trial. State
v. Plude, 2008 WI 58, ¶32, 310
¶20 We agree with the trial court that Huebner failed to satisfy
the test. Huebner could have retained
¶21 Finally, Huebner contends he should be granted a new trial in the interests of justice because there was no expert challenge to the assumptions and conclusions of the State’s witnesses, no effective cross-examination of those witnesses and no objection to the State’s “highly speculative theories,” such that the real controversy was not fully tried and it is likely that justice has miscarried.
¶22 As an appellate court, we have the authority under Wis. Stat. § 752.35 to grant a
discretionary reversal of a conviction in the interests of justice if the real
controversy was not fully tried. State
v. Hubanks, 173
¶23 Our power of discretionary reversal under Wis. Stat. § 752.35 was not meant
to enable a defendant to present a new defense at a second trial merely because
the one presented at the first trial proved fruitless. See
Hubanks,
173
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] We use “We Energies” throughout the opinion although the entity has had different names over the years.
[2]
[3] Huebner challenges the restitution determination in a separate appeal. He indicates he may move to consolidate them. We see no compelling reason to do so.