COURT OF APPEALS DECISION DATED AND RELEASED May 16, 1996 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-0078-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DARNELL JACKSON,
Defendant-Appellant.
APPEAL from a judgment
and orders of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER CURIAM. Darnell
Jackson appeals from a judgment convicting him of four felonies, and from
orders denying him postconviction relief.
He raises numerous issues, all of which we resolve against him. We therefore affirm.
At Jackson's trial, the
State introduced evidence that he used a handgun to fire shots at two men he
had earlier argued with, narrowly missing them while wounding a bystander. Jackson defended with evidence that he was
not the shooter, and was not even present at the crime scene. The jury found him guilty on all four
charges against him, attempted first-degree homicide, first-degree reckless
injury, and two counts of recklessly endangering safety. The trial court sentenced Jackson to prison
terms totaling thirty years.
This appeal comes after
Jackson failed to obtain postconviction relief from the trial court in two
separate proceedings. He raises issues
concerning trial counsel's alleged ineffectiveness, the trial court's alleged
evidentiary errors, its alleged improper rulings at the second postconviction
motion hearing, the insufficiency of the evidence, and the allegedly
unconstitutional jury selection process.
COUNSEL'S ALLEGED INEFFECTIVENESS
Jackson's postconviction
motion alleged that counsel ineffectively failed (1) to properly
investigate the crime and obtain exculpatory photos; (2) to establish
Jackson's 5'8" height; (3) to impeach defense witness Dennis Hassel
with evidence of the prosecutor's concessions in exchange for his testimony;
(4) to request instructions for lesser-included offenses; (5) to
oppose the State's request to withdraw jury instructions Wis J I—Criminal 305 and 330;
(6) to object to the State's photos of the crime scene taken under
different visibility conditions; (7) to properly prepare for sentencing;
and (8) to point out the State's failure to prove that the bullets fired
at the scene matched the gun linked to Jackson.
To prove ineffective
assistance of counsel, the defendant must show that counsel's performance was
deficient and that counsel's errors or omissions prejudiced the defense. State v. Pitsch, 124 Wis.2d
628, 633, 369 N.W.2d 711, 714 (1985).
Counsel's performance is measured by the objective standard of what a
reasonably prudent attorney would do in similar circumstances. Id. at 636-37, 369 N.W.2d at
716. Prejudice results when there is a
reasonable probability that but for counsel's errors the result of the
proceeding would have differed. Id.
at 642, 369 N.W.2d at 719. Counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id. at 637, 369 N.W.2d at
716. Whether counsel's performance was
deficient and whether it was prejudicial to the defendant are questions of
law. Id. at 634, 369
N.W.2d at 715.
Jackson has not proved
that counsel inadequately investigated the case. Counsel's investigator spent 112 hours on the case. Jackson has not identified what exculpatory
facts could have been discovered with additional investigation. As for the failure to obtain exculpatory
photos and/or charts of the crime scene, counsel reasonably explained that such
items were unnecessary because the theory of defense was Jackson's absence from
the scene. Charts and maps only
pertained to where the shots originated.
Counsel reasonably chose
not to introduce evidence of Jackson's height at trial. The shooter was described as between
5'11" and 6'2". Jackson
asserts that counsel could have proved that he was only 5'8". However, that assertion is not supported by
any evidence produced at trial or at Jackson's postconviction motion
hearing. In fact, a police booking
photograph with measuring bars in the background showed Jackson to be
5'11".
Counsel also reasonably
chose not to impeach witness Hassel.
Hassel testified that he saw a man with a gun near the crime scene,
shortly before the shootings. He did
not, however, identify Jackson as that man and the physical description did not
particularly fit Jackson. Counsel
reasonably decided that he wanted the jury to believe Hassel's testimony.
Counsel reasonably chose
not to request lesser-included offense instructions, and not to challenge the
State's use of crime scene photographs.
Jackson denied any involvement with the crime. Requesting lesser-included offense instructions would have
conflicted with that defense and may have substantially reduced its
effectiveness.
Wisconsin
J I—Criminal 305 instructs the jury that it may disregard all the
testimony of a witness who falsely testifies as to any material fact. Jackson suggests that counsel should have
insisted on this instruction because there were more prosecution witnesses than
defense witnesses. His assertion that
the instruction was therefore vital to the defense is merely speculation. As for Wis
J I—Criminal 330, it instructs the jury that it may consider
evidence regarding a witness's character for truthfulness. Jackson fails to cite any character evidence
that was introduced at trial. Giving
the instruction would have been pointless.
Counsel did not
improperly fail to object to the State's crime scene photos, and did not fail
to address the State's absence of proof that Jackson's gun was used in the
crime. A witness testified that the
photos fairly and accurately showed the crime scene. In any event, they were introduced to show the physical layout,
not the conditions that existed at the time of the crime. There is no reasonable chance that Jackson could
have successfully objected. As for the
State's weak ballistics evidence, counsel fully litigated the issue. The jury was well aware of evidence that a
different gun may have been involved in the shooting.
Counsel's alleged lack
of preparation at sentencing was not prejudicial to Jackson. Shortly before sentencing, Jackson discharged
his trial counsel and new counsel was appointed. The latter's only alleged failing was having the defendant refute
statements in the presentence report, rather than doing so himself. The court declared that it understood and
considered Jackson's presentation, and Jackson has presented no evidence to the
contrary.
THE COURT'S ALLEGED EVIDENTIARY
ERRORS
Jackson attributes the
following errors to the trial court:
(1) failure to allow Jackson access to juvenile records of
prosecution witness Kelly Murphy; (2) refusal to grant a mistrial after
the shooting victim's hearsay testimony that Jackson shot her; (3) refusal
to strike as prejudicial hearsay another witness's testimony that Jackson
threatened one of the victim's before the shooting; (4) refusal to grant a
mistrial based on Murphy's testimony that she feared Jackson; (5) refusal
to grant a mistrial because a witness referred to Jackson's probation officer;
(6) refusal to exclude diagrams of the crime scene; and (7) refusal
to grant a continuance so that Jackson's counsel could interview a surprise
witness. We address each alleged error
in turn.
The trial court had no
basis to allow access to Murphy's juvenile records. There is no proof that such records exist. Even if there were, such records are not
admissible to attack a witness's credibility.
See § 906.09(4), Stats.
The trial court properly
refused a mistrial based on the shooting victim's testimony. That testimony was inadmissible because the
victim's statement that Jackson shot her was based on what somebody else told
her, rather than any personal knowledge.
However, the trial court promptly instructed the jury to disregard her
statement. The jury presumptively
followed that instruction. See Pitsch,
124 Wis.2d at 644 n.8, 369 N.W.2d at 720.
A mistrial was therefore unnecessary.
Testimony concerning
Jackson's threat to a victim was admissible.
The witness was present when Jackson uttered the threat. It was therefore not hearsay and was
admissible under § 908.01(4)(b)1, Stats. Additionally, it was not unfairly
prejudicial.
The trial court properly
refused a mistrial when Murphy testified that she feared Jackson. Murphy gave that reason for initially lying
to police about her knowledge of the shooting.
The testimony was necessarily offered and admitted to explain why her
subsequent testimony differed from that initial statement.
The trial court also
properly denied a mistrial based on the reference to Jackson's probation
officer. Jackson has not persuasively
shown how that one brief reference unduly prejudiced the jury. The jury likely would have inferred that
Jackson had committed a minor crime rather than a serious felony in order to be
on probation.
The trial court had no
basis to exclude the State's diagrams of the crime scene. Trial counsel did not object to those
diagrams. On appeal, Jackson has not
explained why they would be inadmissible.
There is no showing, for example, that they inaccurately described the
scene.
The trial court properly
denied a continuance. The surprise
witness was Murphy who had previously been identified as unavailable, but who
appeared to testify on the first day of the trial. Jackson requested a continuance to allow counsel to interview
her. The trial court denied one upon
concluding that Murphy probably would not speak to him. Counsel confirmed that fact the next
day. The continuance would have been
pointless given Murphy's refusal to cooperate with the defense.
JACKSON'S REMAINING ISSUES
Jackson raises several
issues concerning the trial court's handling of his second postconviction
hearing on remand from this court.
Those issues have been addressed and decided adversely to Jackson in
another opinion of this court issued on his petition for a writ of mandamus. Jackson also contends that the evidence was
not sufficient to support his conviction.
The issue is raised but not adequately developed, and we therefore
decline to address it. State v.
Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct. App. 1992). In any event, we agree with the trial
court's characterization of the evidence against Jackson as overwhelming.
Finally, Jackson
contends that the process used to select his jury systematically excluded
African-Americans. The issue was not
raised at trial and is therefore waived.
Brown v. State, 58 Wis.2d 158, 164, 205 N.W.2d 566, 570
(1973).
By the Court.—Judgment
and orders affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.