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COURT OF APPEALS DECISION DATED AND FILED March 10, 2011 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 |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Tommie L. Carter,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Vergeront, P.J., Lundsten and
¶1 PER CURIAM. Tommie Carter appeals a judgment, entered upon a jury’s verdict, convicting him of one count of battery by a prisoner. Carter also challenges the order denying his motion for postconviction relief. Carter challenges the sufficiency of the evidence to support his conviction, and claims he was denied the effective assistance of trial counsel. Carter alternatively urges this court to grant a new trial in the interest of justice. We reject Carter’s arguments and affirm the judgment and order.
Background
¶2 Following Carter’s conviction for battery by a prisoner, the court imposed a five-year sentence consisting of three years of initial confinement and two years of extended supervision, to run consecutive to any other sentence Carter was then serving. Carter filed a motion for postconviction relief alleging he was denied the effective assistance of trial counsel. The motion was denied after a Machner[1] hearing, and this appeal follows.
Discussion
I. Sufficiency of the Evidence
¶3 When reviewing the sufficiency of the evidence, we must view
the evidence in the light most favorable to sustaining the verdict.
¶4 The
crime of battery by a prisoner is set forth as follows: “Any prisoner confined to a state
prison or other state, county or municipal detention facility who intentionally
causes bodily harm to an officer, employee, visitor or another inmate of such
prison or institution, without his or her consent, is guilty of a Class H
felony.” Wis. Stat. § 940.20(1).[2]
¶5 At trial, correctional officer James Finnell testified that on the day of the battery, he escorted Carter back to his cell with the assistance of another officer, Kimberly Phetteplace. The officers stopped in the vestibule outside of Carter’s cell to remove his leg restraints and handcuffs. Finnell testified that when they attempted to follow protocol by assisting Carter to his knees in order to remove the leg restraints, he became agitated, yelled several profanities toward Phetteplace, and indicated he did not want the officers to touch him. Although Carter was ultimately assisted to his knees, he remained agitated. Finnell consequently left his knee across the back of Carter’s calf so that he could not kick the officers once the leg restraint was removed. Although Carter complained that Finnell was “crushing his leg,” Finnell testified that he was not actually kneeling on the back of Carter’s leg but, rather, he secured Carter’s leg while kneeling on one of his own knees.
¶6 The leg restraints were removed and Carter was assisted back
to his feet. After his handcuffed wrists
were subsequently freed from the waist restraint belt, Carter ripped off his
spit mask, cleared his throat as if preparing to spit, and spun to face the
officers. Finnell consequently put his
hand up to deflect any spit, and when he simultaneously reached down to unclip
his keys from his belt, “Carter grabbed [his] hand and bent it back, and then
bent [his] arm out to the side where [Finnell] clocked the doorjamb.” Upon freeing his hand, Finnell attempted to
close the door while Carter attempted to stop it from closing. The door was eventually closed with
Phetteplace’s assistance. Finnell
testified that he did not give Carter permission to grab him and he suffered
harm from the altercation, ultimately missing one month of work due to his
injuries.
¶7 During his testimony, Carter conceded that he was “mouthing
off” as the officers escorted him back to his cell. Carter, however, denied ripping off a spit
mask, turning to face the officers or bending Finnell’s hand back. Although there is conflicting testimony, it
is the jury’s function to decide the credibility of witnesses and reconcile any
inconsistencies in the testimony. Morden
v. Continental AG, 2000 WI 51, ¶39, 235
¶8 Carter argues that no reasonable fact finder could have convicted him because the surveillance video shown at trial proves he did not charge and attack Finnell or prevent the cell door from closing. Any inconsistencies between the video and Finnell’s testimony, however, were brought to the jury’s attention. Further, due to the angle of the camera, the video did not show the vestibule but, rather, showed only Carter’s cell. Carter further emphasizes that in Finnell’s initial report of the incident, he claimed Carter came charging out of his cell. Again, inconsistencies between the incident report and Finnell’s trial testimony were brought to the jury’s attention. In context, a reasonable jury could have interpreted any statements about the “cell” as references to the vestibule or the doorway to the cell. Because both the video and statements from Finnell’s incident report could be reconciled with Finnell’s testimony, we conclude the evidence submitted at trial was sufficient to support Carter’s conviction.
II. Ineffective Assistance of
Trial Counsel
¶9 This court’s review of an ineffective assistance of counsel
claim is a mixed question of fact and law.
State v. Erickson, 227
¶10 To establish ineffective assistance of counsel, Carter must
show that his counsel’s performance was not within the range of competence
demanded of attorneys in criminal cases and that the ineffective performance
affected the outcome of the trial. Strickland
v.
¶11 Here, Carter claims his counsel was ineffective by failing to introduce evidence substantiating that the officers had motivation to falsely accuse him. The subject evidence consisted of complaints Carter made against officers other than Finnell or Phetteplace.
¶12 At the Machner hearing, Carter’s trial
counsel explained strategic reasons for not introducing evidence of prior
incidents between Carter and prison staff.
Trial counsel explained that a letter showing that the
¶13 “If tactical or strategic decisions are made on [a rational]
basis, [we] will not find that those decisions constitute ineffective
assistance of counsel, even though by hindsight we are able to conclude that an
inappropriate decision was made or that a more appropriate decision could have
been made.” State v. Felton, 110
¶14 Carter’s trial counsel also testified that her trial strategy included showing that Carter was poorly treated by staff after the death of his brother. At the Machner hearing, postconviction counsel pointed to two “Offender Complaints” filed by Carter in the week before this incident that allegedly showed staff’s unsympathetic stance. However, those incidents were not discussed during trial and Carter argues that his trial counsel was ineffective for not introducing evidence of those incidents to the jury.
¶15 Although those incidents were not presented to the jury, the
jury heard similar evidence. Carter
testified that he was seeing the head psychologist at the prison because he was
“upset” by his brother’s death. Carter
also testified that staff members had called him “racial names.” Thus, the jury knew that Carter’s brother had
recently died in prison and that staff verbally mistreated Carter. The evidence that Carter complains about
would have been cumulative and, therefore, he cannot not satisfy the prejudice
prong. See Strickland, 466
¶16 Carter also claims the reports would have established motivation for the prison to withhold relevant “video evidence.” To the extent Carter intimates that the prison destroyed video from the vestibule, the circuit court found that although there was a camera shell in the vestibule, no camera was installed there until after the subject incident. With respect to the video of Carter in his cell, the prison initially sent defense counsel a video from April 22, 2007—four days before the incident. The District Attorney discovered the mistake on the day before trial, and the correct video was ultimately provided to defense counsel on the day of trial. Again, it is too speculative to conclude that prison officials would have surreptitiously withheld the video based on Carter’s past complaints. We therefore conclude counsel was not defective for failing to introduce evidence of those complaints.
¶17 Carter also claims trial counsel was ineffective in her “mishandling of the video evidence in comparison to the officers’ witness statements.” Specifically, Carter contends that counsel should have sought a continuance in order to more thoroughly review the video, and should have submitted both Finnell’s and Phetteplace’s incident reports and written statements to the jury to better enable their comparison with the video. Even assuming counsel was somehow deficient, we are not persuaded that her deficiency affected the outcome at trial.
¶18 The record shows that counsel was given an opportunity to review the video with Carter before opening statements at trial. The video was then played at least three separate times at trial, and defense counsel pointed out inconsistencies between the video and Finnell’s pretrial statements, specifically pointing out that the video did not show Carter coming out of his cell or using his foot to prevent the cell door from closing. During cross-examination of Phetteplace, she reiterated her statements that Carter came out of the cell and used his foot to prevent the cell door from closing. On direct examination of Carter, counsel again elicited testimony that the video did not show Carter coming out of the cell or preventing the door from closing. Finally, during her closing argument, defense counsel discussed the video, comparing its inconsistencies with the officers’ statements. Counsel reiterated that, despite the claims in the incident reports, Carter did not come out of his cell, “because we all saw him the whole time in there.” Carter therefore fails to establish how earlier access to the video or introduction of the actual statements into evidence would have altered the outcome at trial.
¶19 Counsel pointed out inconsistencies between the statements and video through trial testimony and in her closing argument. As the circuit court acknowledged in its oral denial of Carter’s postconviction motion, it could not “Monday morning quarterback and find that [counsel’s performance] fell below the standard of care. Nor [could the court] find it prejudiced Mr. Carter.” As the court noted, counsel “did an adequate job and dealt with this dynamic situation the best she could and she hit all the points she had to make [on] cross-examination … [a]nd then summarized it very briefly in her argument.” We therefore conclude that Carter was not prejudiced by any claimed deficiency on the part of his trial counsel.
III. Discretionary Power of Reversal
¶20 Alternatively, Carter seeks a new trial under Wis. Stat. § 752.35,
which permits us to grant relief if we are convinced “that the real controversy
has not been fully tried, or that it is probable that justice has for any
reason miscarried.” In order to
establish that the real controversy has not been fully tried, Carter must
convince us “that the jury was precluded from considering ‘important testimony
that bore on an important issue’ or that certain evidence which was improperly
received ‘clouded a crucial issue’ in the case.” State v. Darcy N.K., 218
¶21 Here, Carter argues that the real controversy has not been
fully tried and justice has miscarried based on the errors alleged above. We have rejected Carter’s various challenges
to his conviction, and “[a]dding them together adds nothing. Zero plus zero equals zero.” Mentek v. State, 71
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.