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COURT OF APPEALS DECISION DATED AND FILED July 17, 2003 Cornelia G. Clark 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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Cir. Ct. No.
99-CF-127 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of Wisconsin, Plaintiff-Respondent, v. Kurt W. Meyer, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Sauk County: James Evenson, Judge. Affirmed.
Before Roggensack, Deininger and Lundsten, JJ.
¶1 PER CURIAM. Kurt Meyer appeals an order denying his postconviction motion filed under Wis. Stat. § 974.06 (2001-02).[1] The issues relate to ineffective assistance of counsel and newly discovered evidence. We affirm.
¶2 Meyer makes several arguments that his trial
counsel was ineffective. 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. Washington, 466 U.S. 668, 687 (1984). We need not address both components of the analysis if the
defendant makes an inadequate showing on one.
Id. at 697. To
demonstrate prejudice, the defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id.
at 694. A reasonable probability is one
sufficient to undermine confidence in the outcome. Id.
¶3 Meyer
first argues that his trial counsel was ineffective by failing to investigate a
possible witness, Melissa Jackson. The
State responds that the circuit court properly denied Meyer’s motion on this
issue without a hearing. However, our
review of the record shows that this issue was not raised in Meyer’s motion,
and was not ruled on by the circuit court.
We usually do not decide issues that are raised for the first time on
appeal, and we see no reason to do so in this case. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d
140 (1980).
¶4 Meyer
next argues that his appellate counsel was ineffective in connection with the
fact that he was in restraints during the three-day jury trial. Even if we assume that Meyer was in
restraints during the trial, and that there was some deficient performance by
appellate counsel in not raising the issue, we conclude that Meyer has failed
to allege prejudice sufficient to undermine our confidence in the outcome. The jury was already aware that he had nine
prior convictions.
¶5 Meyer
argues that his trial counsel failed to take proper action to enable him to
appear at trial in civilian clothes, rather than prison attire. Before trial, the court had ruled that Meyer
could appear in civilian clothes.
Meyer’s postconviction motion alleged that trial counsel “failed to
object to the trial Court that Petitioner’s family tried to bring civilian
clothing on two separate occasions after trial counsel requested Petitioner be
allowed to wear civilian clothes.…
Petitioner told Trial Counsel that he had clothing available but jail
Sergeant Mary Ward denied this clothing on two separate occasions.” The motion was accompanied by an affidavit
by Marvin Bloss, stating that he tried to bring civilian clothes on two
separate occasions, but “county clerk” personnel Mary Ward did not allow him to
drop them off at the courthouse. We
conclude that Meyer did not sufficiently allege facts that would tell what the
attorney failed to do that caused Meyer not to be able to have civilian clothes
for trial.
¶6 Meyer
argues that his trial counsel was ineffective by failing to object to a
statement by the prosecutor during closing argument that referred to Meyer as a
“thug.” The prosecutor made the comment
to describe how she believed another witness in the case regarded, or should
have regarded, Meyer. This is not a
sufficient allegation of deficient performance. A prosecutor may use this type of descriptive term, as long as it
is used in analyzing the evidence, as it was here. State v. Johnson, 153 Wis. 2d 121, 132, 449 N.W.2d
845 (1990).
¶7 Finally,
Meyer argues that the circuit court erred by denying his motion for a new trial
based on newly discovered evidence. To
prevail, Meyer must show a reasonable probability that a different result would
be reached at a new trial. State
v. Eckert, 203 Wis. 2d 497, 516, 553 N.W.2d 539 (Ct. App. 1996). This is a discretionary determination that
we affirm unless discretion was erroneously exercised. Id. Meyer’s new evidence consists of a police report of a statement
taken from a prison inmate who said he had spoken with somebody else who was
involved in the incident for which Meyer was convicted. We see nothing in the statement that
suggests a reasonable probability of a different outcome. The inmate’s description of the incident
does not provide any significant evidence on whether Meyer was involved.
By the Court.—Order affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5.