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COURT OF APPEALS DECISION DATED AND RELEASED April 4, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-2242-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROMONDO D. SEYMOUR,
Defendant-Appellant.
APPEAL from a judgment
and orders of the circuit court for Dane County: DANIEL R. MOESER, Judge. Judgment
affirmed in part; reversed in part and cause remanded with directions. Orders affirmed.
Before Eich, C.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Romondo D. Seymour appeals from a judgment convicting
him on six felony counts, and from orders denying his postconviction motions
for relief. We reverse insofar as the
judgment imposes a weapons enhancer under § 939.63, Stats., on three of the counts. We otherwise affirm.
Police officers were
looking for Seymour on an apprehension request issued by his probation
agent. Believing that they had located
him at a motel, they placed it under surveillance. Several people were subsequently observed making short visits to
a particular room. Several hours later,
Seymour and Jean Sertish emerged from that room. Sertish climbed into the driver's seat of her car and Seymour
went to its rear where the police observed him removing two items from a
plastic bag in the trunk and handing them to Margaret Youngblood. Seymour then closed the trunk and climbed in
the passenger's side of Sertish's car.
Youngblood drove off separately.
When Sertish drove away
from the motel, the police stopped the car and arrested Seymour. An officer then moved the car into a nearby
parking lot and, ten minutes after the arrest, opened the trunk and seized the
plastic bag. A subsequent inventory
search of the bag disclosed two handguns, substantial quantities of three
different controlled substances, and quantities of paraphernalia associated
with illegal drug selling. A subsequent
investigation found Seymour's fingerprints on one of the guns and on a piece of
paper in the bag. The police found a
large amount of cash and a pager on Seymour's person.
A search warrant
executed at Youngblood's residence uncovered additional drugs, paraphernalia,
ammunition for the seized guns, personal documents belonging to Seymour, other
papers indicating he lived at Youngblood's address, and a written note stating,
"Romondo, I sold four for 85."
The drugs and Seymour's belongings were discovered in close proximity to
one another.
As a result of the
arrest and subsequent searches, the State charged Seymour with two counts of
possessing a firearm as a felon, and four counts of illegally possessing
controlled substances with intent to sell them, one each for the four different
types of substances seized from the trunk and the apartment. The State charged him as a repeater on all
counts and as a repeat drug offender on the drug charges. The State also alleged that he was subject
to a penalty enhancer on the drug counts resulting from the trunk search
because he committed them while possessing the handguns seized in the
search. Section 939.63, Stats.
Seymour's jury trial
proceeded after the trial court denied his motion to suppress the evidence
seized from Sertish's trunk. At trial,
the State used Seymour's stipulation to a prior manslaughter conviction to
prove him a felon on the handgun charges.
Seymour was subsequently convicted on all six counts, as a repeater and
a drug repeater, subject to the firearm penalty enhancer on three of the drug
counts. The trial court imposed
consecutive prison sentences totaling fifty-five years.
In his postconviction
motions, Seymour argued that he received ineffective assistance of trial
counsel. He also sought a new trial on
newly discovered evidence consisting of testimony from Youngblood. The trial court denied relief and this
appeal ensued. The issues are whether
the court properly denied his motion to suppress the evidence seized from the
car trunk, whether Seymour received effective assistance of counsel, whether
the court erred by allowing the jury to hear Seymour's stipulation to a
manslaughter conviction, whether the evidence supported the verdict, whether
the sentences were excessive,[1]
whether the court should have granted a new trial on Seymour's newly discovered
evidence, whether he should receive a new trial in the interest of justice and
whether the court properly instructed the jury on the firearm penalty
enhancer.
Seymour lacked standing
to challenge the car search. State
v. Guzy, 139 Wis.2d 663, 407 N.W.2d 548, cert. denied, 484 U.S.
979 (1987), recognized a passenger's standing to challenge the legality of a
vehicle stop, and to suppress evidence seized pursuant to an illegal stop. Seymour contends that Guzy
applies in his case as well. However,
the stop here was legal and was not challenged. Absent an illegal stop, a passenger in a car may not contest a
search of that car unless he or she demonstrates a legitimate expectation in
the privacy of the area searched. Rakas
v. Illinois, 439 U.S. 128, 148-49 (1978). Seymour made no such showing with regard to the trunk. Additionally, the fact that Seymour was
probably the target of the search also fails to provide him with standing to
challenge it. Id. at
132-33.
Counsel did not provide
ineffective trial representation because his allegedly deficient acts did not
prejudice Seymour. He asserts that
counsel unnecessarily allowed the jury to hear that Seymour's stipulated felony
conviction was for manslaughter.[2] We conclude, however, that no reasonable
probability exists of a different outcome had the jury not learned the specific
nature of the conviction. The evidence
is overwhelming that Seymour possessed both handguns and the drugs found in the
apartment and in the trunk. Seymour's
actions, his fingerprints, and the documentary evidence convicted him, not his
previous conviction. Without prejudice,
counsel's error is not grounds for reversal.
State v. Pitsch, 124 Wis.2d 628, 633, 369 N.W.2d 711, 714
(1985) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)).
Seymour next argues that
had counsel successfully moved to sever the drug counts from the firearm
counts, the jury on the latter charges would not have known anything of his
prior felony record. Again, the
evidence and not Seymour's record convicted him on the drug counts, and no
prejudice was shown.
Under Strickland,
the burden is on the defendant to prove prejudice from counsel's
ineffectiveness. Strickland,
466 U.S. at 687. Seymour suggests that
under Wis. Const. art. I, § 7,
the State must bear that burden beyond a reasonable doubt. We do not reach that question because no
prejudice resulted from counsel's actions no matter which party bears the
burden.
The specific references
to Seymour's manslaughter conviction were not plain error because they did not
affect his substantial rights. Section
901.03(4), Stats. Additionally, the plain error rule is
reserved for cases where the erroneous introduction of evidence likely
infringed on the defendant's constitutional rights. State v. Wiese, 162 Wis.2d 507, 515, 469 N.W.2d
908, 911 (Ct. App. 1991). Seymour did
not forfeit any constitutional right by the error in identifying his previous
felony.
The jury heard
sufficient evidence to convict Seymour on all counts. Seymour argues that the evidence linking him to the drugs and the
guns was tenuous at best. We disagree. Seymour's fingerprints were undisputedly on
one of the guns and a piece of paper found in the bag in Sertish's trunk. Because of their location in the bag,
Seymour cannot reasonably argue that he accidentally touched them while
retrieving other items for Youngblood.
As for the apartment, numerous documents were found there including
Seymour's social security card, driver's permit, a note addressed to him, and
other documents linking him with the apartment. Also recovered from the same area was ammunition fitting the
seized weapons. The jury could
reasonably infer that Seymour resided in the apartment and possessed the drugs
found near his belongings.
Seymour did not receive
an excessive sentence. In passing
sentence, the trial court considered Seymour's lengthy criminal record as a
juvenile and as an adult. His adult
felonies included several violent crimes violence and drug related
offenses. The court also noted that for
seventeen years Seymour was either in prison or continuously engaged in criminal
activity. The court considered the
extensive efforts to rehabilitate Seymour, and their evident failure. The court concluded that Seymour was a
dangerous man and that there was no likelihood that he would stop committing
crimes. The "bottom line" was
the public's need to be protected.
The trial court has
great latitude in passing sentence. State
v. J.E.B., 161 Wis.2d 655, 662, 469 N.W.2d 192, 195 (Ct. App. 1991), cert.
denied, 503 U.S. 940 (1992). A
sentence is excessive only when it is so disproportionate to the crimes as to
shock public sentiment. State v.
Wickstrom, 118 Wis.2d 339, 355, 348 N.W.2d 183, 191 (Ct. App.
1984). Given Seymour's extensive
criminal history, with no rehabilitative potential, the sentence is not
shocking.
The trial court properly
denied Seymour's motion for a new trial based on newly discovered
evidence. That evidence consisted of
exculpatory testimony from Youngblood.
However, Seymour was aware of that testimony before his trial. The reason he did not use it was
Youngblood's stated intention to invoke her Fifth Amendment right to refuse to
answer any and all questions if she were called to testify. Evidence that is known to the defendant but
unavailable, is not newly discovered evidence that justifies a new trial when
it becomes available later. State
v. Jackson, 188 Wis.2d 187, 201, 525 N.W.2d 739, 745 (Ct. App.
1994).
Seymour is not entitled
to a new trial in the interest of justice.
We may in our discretion order a new trial in the interest of justice if
the real controversy has not been fully and fairly tried. Section 752.35, Stats. Seymour
contends that the case was not fully and fairly tried because of ineffective
assistance of counsel, plain error in divulging his manslaughter conviction,
and the omission of Youngblood's testimony.
As we have noted, neither counsel's actions nor the alleged plain error
caused Seymour prejudice. As the trial
court noted, Youngblood's testimony would have been neither credible nor
effective in refuting the strong physical and documentary evidence of
possession. We therefore conclude that
the controversy was fully and fairly tried.
We reverse the judgment
in part to eliminate the weapon enhancer on three of the drug counts. Under State v. Peete, 185
Wis.2d 4, 18, 517 N.W.2d 149, 154 (1994), the State must prove not only that
the defendant possessed a weapon while committing an offense, but that he or
she actually used or threatened to use it.
As in Peete, we reverse because the trial court did not
require that the jury find beyond a reasonable doubt that Seymour possessed the
handguns in order to facilitate the commission of the predicate drug
offenses. Id. at 19, 517
N.W.2d at 154. Although Seymour's trial
occurred three years before Peete was decided, new rules for
criminal prosecutions are retroactive in all cases pending on direct review or
not yet final. State v. Koch,
175 Wis.2d 684, 694, 499 N.W.2d 152, 158, cert. denied, 114 S. Ct. 221
(1993).
On remand, the State may
elect whether to conduct a retrial solely on the issue whether Seymour
committed the three predicate drug offenses while possessing a dangerous
weapon. If the State elects not to retry
Seymour, the trial court shall resentence Seymour without considering the
weapons enhancer. See State
v. Avila, 192 Wis.2d 870, 893b, 535 N.W.2d 440, 440 (1995) (per curiam)
(even if the sentence imposed is less than the maximum, resentencing is necessary
where we cannot ascertain from the record whether a portion of the sentence was
nonetheless due to the invalid enhancer.)
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded with directions. Orders affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Seymour also raises the issue whether his conviction should have been dismissed because he was not provided a prompt probable cause determination after his arrest. Seymour acknowledges that dismissal is not presently a remedy for that particular violation of his rights. State v. Golden, 185 Wis.2d 763, 519 N.W.2d 659 (Ct. App. 1994). He raises the issue merely to preserve it for further review.