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COURT OF APPEALS DECISION DATED AND RELEASED June
21, 1995 |
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. 94-0731-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRY
JACKSON,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Racine County: GERALD P. PTACEK, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. Terry Jackson appeals from a
judgment convicting him of being party to the crime of first-degree intentional
homicide with a dangerous weapon and an order denying his postconviction
motions. We conclude that he received
effective assistance of counsel at trial, the trial court did not err in
denying his request for a mistrial, the sentence is an appropriate exercise of
the trial court's discretion and the jury pool was not constitutionally infirm.
INEFFECTIVE
ASSISTANCE OF COUNSEL
Jackson
alleges his two trial attorneys were ineffective. He claims that his first counsel, Michael Backes, was
ineffective because he did not move to substitute Judge Gerald Ptacek and did
not discuss the possibility of substitution with Jackson. Jackson further alleges that the attorney
who replaced Backes, Domingo Cruz, was ineffective for failing to seek Judge
Ptacek's removal from Jackson's case.
Jackson also alleges that Cruz failed to call four witnesses who would
have established that he was not a gang member at the time of the homicide, and
that a co-actor, Christopher Berry, was involved in gang activity and most
likely assisted the juvenile who shot and murdered Darnell Williford.
To
establish a claim of ineffective assistance, a defendant must show that
counsel's performance was deficient and that it prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). To prove
deficient performance, a defendant must show that counsel made errors so
serious that he or she was not functioning as the "counsel"
guaranteed by the Sixth Amendment. Id. Review of counsel's performance is premised
upon great deference to the attorney and every effort is made to avoid
determinations of ineffectiveness based on hindsight. State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d
845, 847 (1990). The case is reviewed
from counsel's perspective at the time of trial, and the burden is placed upon
the defendant to overcome a strong presumption that counsel acted reasonably
within professional norms. Id. at
127, 449 N.W.2d at 847-48.
Even
if deficient performance is found, a judgment will not be reversed unless the
defendant proves that the deficiency prejudiced the defense. Id. at 127, 449 N.W.2d at
848. The defendant must show a
reasonable probability that but for counsel's unprofessional errors the result
of the proceeding would have been different.
Id. at 129, 449 N.W.2d at 848. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome."
Id. (quoted source omitted).
Whether
there has been ineffective assistance of counsel is a mixed question of law and
fact. State ex rel. Flores v.
State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994). We will not overturn a trial court's
findings of fact concerning the circumstances of the case and counsel's conduct
and strategy unless the findings are clearly erroneous. State v. Knight, 168 Wis.2d
509, 514 n.2, 484 N.W.2d 540, 541 (1992).
However, the final determinations of whether counsel's performance was
deficient and prejudiced the defense are questions of law which this court
decides without deference to the trial court.
Id.
Jackson
argues that Backes should have moved to substitute Judge Ptacek because in his
former capacity as district attorney he was involved in prosecuting
Jackson. At the postconviction motion
hearing, Backes testified that he was aware of the right to substitute judges
and that Jackson had previous contacts with Judge Ptacek. Backes testified that he discussed with
Jackson whether Judge Ptacek should preside over his trial and that he informed
Jackson of his discussions with "other attorneys, defense attorneys,
public defenders" regarding whether Judge Ptacek should preside.
Judge
Ptacek took judicial notice of his involvement as a district attorney in two
previous cases involving Jackson. In
one case, Judge Ptacek signed the criminal complaint against Jackson and
attended the initial appearance.
However, he did not make the charging decision in the case; he merely
signed the complaint to swear the complaining officer. In another case, Judge Ptacek appeared on a
motion to modify Jackson's bond. Judge
Ptacek stated that Jackson's name was familiar to him but he did not recall any
details of the prior cases and was not biased against Jackson. Judge Ptacek stated that neither
substitution nor recusal was necessary to ensure that Jackson would be tried
before an impartial judge.
Jackson
testified that after the preliminary examination, he advised Backes that Judge
Ptacek had prosecuted him on a prior occasion.
Jackson testified that Backes did not discuss with him whether they
should seek substitution of Judge Ptacek.
However, he conceded that he was somewhat aware of the right to
substitute.
Jackson
also alleges that Cruz was ineffective for failing to seek Judge Ptacek's
recusal because he had been involved in earlier prosecutions of Jackson.[1] Cruz testified that he and Jackson discussed
his previous contacts with Judge Ptacek, and he did not believe that a request
for recusal on that basis would have any merit because the contacts had been
minimal.[2] Jackson testified that he asked Cruz to take
action to remove Judge Ptacek, but he declined to do so. Jackson stated that because Judge Ptacek
remained on the case and made rulings favorable to the prosecution, he decided
to testify against the advice of Cruz.
In his postconviction hearing testimony, Cruz opined that it was
Jackson's testimony which lost the case.
Judge
Ptacek rejected Jackson's claims of ineffective assistance of counsel relating
to his presence in the case. Judge
Ptacek noted that he had no specific recollection of his contacts with Jackson
six to eight years earlier and he would not have recused himself had he been
asked to do so. The trial court found
that Backes and Jackson were aware of the substitution statute and that the
failure to seek substitution was not ineffective assistance of counsel.
We
need not consider whether trial counsel's performance was deficient if we can
resolve the ineffectiveness issue on the ground of lack of prejudice. State v. Moats, 156 Wis.2d 74,
101, 457 N.W.2d 299, 311 (1990).
Whether a defendant was prejudiced is a question of law which we decide de
novo. Id.
We
conclude that Jackson has not met his burden to show a reasonable probability
that but for counsels' failure to seek Judge Ptacek's removal, the result of
the proceeding would have been different.
See Johnson, 153 Wis.2d at 129, 449 N.W.2d at
848. With regard to the claim that Cruz
should have filed a recusal motion based upon Judge Ptacek's previous contacts
with Jackson, we observe that counsel cannot be faulted for not bringing a
motion that would have failed. See
State v. Simpson, 185 Wis.2d 772, 784, 519 N.W.2d 662, 666 (Ct.
App. 1994). At the postconviction
motion hearing, Judge Ptacek stated that he would not have granted a motion on
that basis. Finally, because we reject
Jackson's claims of trial court error throughout this opinion, we do not see a
reasonable probability that another presiding judge would have resulted in a
different outcome at trial.
We
turn to Jackson's complaint that Cruz was ineffective for failing to call four
witnesses at trial. Jackson complains
that Cruz declined to call the following four individuals to testify: Shirley Young, Felicia Scott,
Carl Pruit and Monique Overstreet.
Jackson argues that had these individuals been called to testify, they
would have demonstrated that he is "a quiet person and a person who was
not involved in gang activity."
Additionally, Jackson contends that they would have established that his
co-actor, Berry, was the type of person who would have been involved in the
murder, was heavily involved in gang activity, was involved with the juvenile
who committed the murder, and Berry and the juvenile were together without the
defendant thirty minutes before the shooting.
Jackson
claims that he was prejudiced by Cruz's failure in two ways. First, the record does not contain the
testimony from these witnesses to counter the State's contention that Jackson
was involved in gang activity. Second,
Jackson contends that Cruz's failure to seek recusal and call these allegedly
favorable witnesses caused him to testify to his detriment and against the
advice of counsel.
At
the hearing on Jackson's ineffective assistance of counsel claim, Cruz
testified that he reviewed statements taken from these witnesses by an
investigator before and during trial as part of his continuing preparation of
Jackson's defense. Cruz testified that
testimony from these witnesses would have been inconsistent with his theory of
defense; namely, that Berry and the juvenile killed the victim and had a motive
to do it arising from Berry's drug-related dispute with the victim and the
juvenile's interest in becoming a gang member.
Cruz
also discounted the utility of testimony from the four witnesses to the effect
that Jackson was not a gang member.
First, the witnesses would have testified that Jackson did not have a
gang-member persona; the witnesses would not have testified that Jackson was
not a gang member. Second, in
presenting evidence of Jackson's non-gang member character, the defense would
have opened the door for the State to establish that Jackson was a gang
member. Instead, Cruz's strategy was to
discredit or impeach the State's evidence on the issue of whether Jackson
belonged to a gang.
Third,
Cruz believed that Young's testimony would have been cumulative and of little
probative value because she hardly knew Jackson. Overstreet's testimony would have been cumulative on the question
of when Jackson came on the scene.
Scott's testimony would have opened the door to further evidence
regarding Jackson's gang activities.
Pruit's testimony probably would have placed Jackson among a group of
individuals who the State theorized were making gang signs, encouraging and
giving moral support to the juvenile prior to the shooting. Pruit's testimony would have undermined
Cruz's theory that Jackson was standing in front of the location where the
shooting occurred but was not associating with the alleged gang members. Finally, Cruz stated that he discussed the
utility of the four witnesses with Jackson and Jackson acquiesced in his
strategic decision not to call them.
Jackson
testified that he wanted the four witnesses to testify because they had
testimony favorable to the defense. He
denied that he agreed with Cruz's decision not to call these witnesses.
The
trial court acknowledged Cruz's trial strategy to suggest that Berry and the
juvenile, not Jackson, were involved in the killing. The trial court also acknowledged Cruz's assessment of Young's
and Overstreet's testimony as cumulative, that Scott's testimony would have
opened the door to more evidence that Jackson was a gang member, and that
Pruit's testimony would have been disadvantageous. The trial court found that regardless of whether Jackson
acquiesced in the decision not to call the four witnesses, Cruz made a
strategic decision not to call these witnesses and that his strategy was based
upon "logic and reason and common sense when looking at the facts of this
trial and the effect that the evidence which was not presented would have had
the witnesses been called."
"An
attorney's strategic decision based upon a reasonable view of the facts not to
call a witness is within the realm of an independent professional
judgment." Whitmore v.
State, 56 Wis.2d 706, 715, 203 N.W.2d 56, 61 (1973). We do not second-guess "trial counsel's
considered selection of trial tactics or the exercise of a professional
judgment in the face of alternatives that have been weighed by trial
counsel." State v. Felton,
110 Wis.2d 485, 502, 329 N.W.2d 161, 169 (1983). We assess Cruz's performance from the perspective of the prudent
lawyer standard which requires that "strategic or tactical decisions must
be based upon rationality founded on the facts and the law" as they
existed at the time of trial counsel's conduct. Id. at 502-03, 329 N.W.2d at 169.
We
agree with the trial court that Cruz's decision not to call these witnesses was
the product of a reasoned trial strategy rationally based upon the facts and
the law. See id.
at 502, 329 N.W.2d at 169. Because
Jackson has not made a sufficient showing that Cruz's performance was deficient
in this regard, his ineffective assistance claim fails. See Strickland, 466
U.S. at 687.
Furthermore,
as the State extensively points out, given the other evidence presented against
Jackson, it is not reasonably probable that the testimony of the four witnesses
would have resulted in a different result at trial. While we do not repeat the State's analysis here, we find it
compelling.
MISTRIAL
Jackson
argues that the trial court erroneously declined to grant his motion for a
mistrial due to belatedly discovered exculpatory evidence. On the fourth day of trial, the defense
learned details surrounding the execution of a search warrant at a Racine
residence (1135 Geneva Street) where three spent .38-caliber shell casings were
found.[3] The defense argued this information should
have been disclosed as exculpatory because it supported the defense's theory
that a gang which frequented 1135 Geneva, the Shorty Vice Lords, was involved
in Williford's death. The defense
argued that had this evidence been disclosed prior to trial, it would have been
able to mention it in its opening statement as further evidence of a conspiracy
between the Shorty Vice Lords and Berry to kill Williford.
In
opposing the motion for a mistrial, the State informed the trial court that
information relating to the search of 1135 Geneva and the evidence discovered
there was available in the district attorney's office for review by counsel,
along with ballistics tests on the bullet removed from the victim and the shell
casings found at Geneva Street. An
expert in ballistics testified that he could not determine whether the bullet
removed from Williford and the three shell casings were fired from the same
gun.
The
trial court concluded that the shell casings were not exculpatory and denied
the motion for a mistrial. The trial
court observed that Jackson had already suggested to the jury that Shorty Vice
Lords gang members, not Jackson, were involved in the murder. Therefore, the trial court noted that the
shell casings were additional evidence which could be argued to support that theory. The trial court found that the State did not
willfully conceal the evidence from the defense, but granted a continuance from
10:00 a.m. Friday morning to 1:30 p.m. the following Monday to permit the
defense to investigate the evidence and prepare to argue it in closing.
At
the hearing on Jackson's ineffective assistance of counsel motion, Cruz
testified that although the trial court denied his motion for a mistrial, it
did give him a sufficient opportunity to investigate the evidence before
resuming trial. Cruz also testified
that the evidence was helpful to the defense because it supported its theory
that Berry and the juvenile were responsible for the killing because they
frequented the premises where .38-caliber shell casings were found.
The
State must disclose evidence that is favorable to the accused and material
either to guilt or punishment. State
v. Garrity, 161 Wis.2d 842, 848, 469 N.W.2d 219, 221 (Ct. App. 1991)
(citations and quotation omitted). We
will assume, without deciding, that the shell casings were favorable to Jackson
and material to guilt. Having made that
assumption, we turn to the manner in which the trial court handled the belated
disclosure of this evidence. Where
there has been noncompliance with the duty to disclose evidence, it is
appropriate to grant a continuance to permit investigation of the belatedly
produced evidence. State v.
Calhoun, 67 Wis.2d 204, 218-19, 226 N.W.2d 504, 511 (1975).[4]
Whether
to grant a continuance is discretionary with the trial court. State v. Braunsdorf, 98 Wis.2d
569, 576, 297 N.W.2d 808, 811 (1980).
We will sustain the trial court's exercise of its discretion if the
record demonstrates that the trial court had a reasonable basis for its
decision. See State v.
Thompson, 146 Wis.2d 554, 558-59, 431 N.W.2d 716, 718 (Ct. App.
1988). Here, the trial court had a
reasonable basis for its decision to grant a continuance. The evidence was disclosed in the middle of
the trial rather than at the end.
Therefore, a continuance permitted the defense to investigate the
evidence and prepare to argue it.
Jackson
further argues that the late discovery of this evidence deprived him of the
reasonable opportunity to make full use of it, a problem which the Garrity
court addressed by ordering a new trial.
Garrity, 161 Wis.2d at 850-52, 469 N.W.2d at 222-23. Garrity, however, is
distinguishable from the instant case because Garrity's trial counsel stated
that his trial strategy would have been substantially different had certain
evidence been disclosed prior to trial.
Id. at 850-51, 469 N.W.2d at 222-23. In contrast, Jackson's trial attorney
testified that the late disclosure of the evidence did not adversely affect his
trial strategy and that he had a sufficient opportunity to investigate the
evidence.
Having
rejected Jackson's appellate challenges to the identity of the presiding judge,
the late discovery of shell casings, and the failure to call certain witnesses,
we must also reject Jackson's attempt to link these matters to his decision to
testify at trial. We have already
observed that Jackson's decision to testify was against the advice of his
counsel. In fact, counsel opined that
Jackson's testimony lost the trial.
"An accused cannot follow one course of strategy at the time of
trial and if that turns out to be unsatisfactory complain he should be
discharged or have a new trial." Cross
v. State, 45 Wis.2d 593, 605, 173 N.W.2d 589, 596 (1970). Jackson made a bad choice and he cannot seek
relief from that choice by linking it to unavailing claims of ineffective
assistance of trial counsel and trial court error.
SENTENCE
Jackson
argues that the trial court did not adequately explain the reasons for the
disproportionate sentences it imposed on Jackson (life imprisonment with parole
eligibility in fifty years) and Berry (life imprisonment with parole
eligibility in thirty-five years). He
also contends that his sentence is unduly harsh.
The
trial court was required to exercise its discretion in setting Jackson's parole
eligibility date. See State
v. Borrell, 167 Wis.2d 749, 767, 482 N.W.2d 883, 888 (1992). In setting a parole eligibility date, a
court must consider the factors it would consider if it were imposing a
sentence. Id. at 774, 482
N.W.2d at 892. The primary factors to
be considered are the gravity of the offense, the offender's character and the
need to protect the public. Id.
at 773, 482 N.W.2d at 892.
The
trial court acknowledged that the presentence investigation report recommended
(and the State concurred in) a sixty-year parole eligibility period. Jackson suggested a twenty-five year
eligibility period. The court reviewed
the circumstances of the crime: Jackson
traded the murder weapon with Berry and assisted Berry in getting the juvenile
to the roof of a building from which the juvenile shot Williford. The court noted Jackson's long criminal
record, including numerous offenses as a juvenile, and observed that Jackson
had spent the majority of his life in various juvenile and adult penal
institutions.[5] The presentence investigation report stated
that Jackson is a long-time gang member, a menace to society and has no regard
for the value of human life.[6] The trial court considered that the crime
was vicious and aggravated and that Jackson was in need of close rehabilitative
control given his long history of criminal activity without successful
rehabilitation. The trial court also considered
that the case involved gang activity and that Jackson used a juvenile who
wanted to become a gang member to commit what the trial court termed a
"murder for hire." The trial
court found that Jackson did not express any remorse[7]
and that the public requires protection from Jackson.
It
is clear from the record in this case that the trial court considered the
proper factors in establishing Jackson's parole eligibility date. We see no misuse of the trial court's
discretion.
Jackson
argues that Berry's sentence was less than that imposed upon him. While that may be true, "[a] mere
disparity between the sentences of co-defendants is not improper if the
individual sentences are based upon individual culpability and the need for
rehabilitation." State v.
Toliver, 187 Wis.2d 346, 362, 523 N.W.2d 113, 119 (Ct. App. 1994). Jackson has the burden of establishing that
the disparity in sentences was arbitrary or based upon considerations not
pertinent to proper sentencing. See
State v. Perez, 170 Wis.2d 130, 144, 487 N.W.2d 630, 635 (Ct.
App.), cert. denied, 113 S. Ct. 416 (1992). The trial court properly considered all of the factors relevant
to establishing Jackson's parole eligibility date and did not consider any
irrelevant factors.[8]
JURY POOL
Finally,
Jackson argues that the jury pool did not represent a fair cross-section of the
community. Jackson's pretrial motion
claimed that Racine County's method of impaneling jury pools systematically
excluded minority jurors contrary to Duren v. Missouri, 439 U.S.
357 (1979), and State v. Pruitt, 95 Wis.2d 69, 289 N.W.2d 343
(Ct. App. 1980), and the Sixth and Fourteenth Amendments to the United States
Constitution. The motion stated that
Jackson is an Afro-American and that a March 11, 1991, census reveals that
minorities constitute approximately 16% of Racine County's population. Jackson challenges what he claims is Racine
County's practice of limiting minority participation in jury pools to 10%,
which is less than the overall percentage of minorities in the county's
population. The trial court rejected
Jackson's challenge to the jury array.
On
appeal, Jackson challenges the jury pool creation process because it groups all
nonwhite individuals into a "minority category" rather than insuring
that the pool contains a representative percentage of each Racine County
minority. This particular argument is
waived on appeal because it was not made in the trial court. We generally do not address arguments made
for the first time on appeal, particularly when the appellate issue involves
factual elements not brought to the attention of the trial court. Wirth v. Ehly, 93 Wis.2d 433,
443-44, 287 N.W.2d 140, 145 (1980).[9] Even if this issue were not waived, we would
conclude that Jackson has not met his burden to show a prima facie violation of
the Sixth Amendment right to a jury pool representing a fair cross-section of
the community.
We
turn to Jackson's broader claim that the jury pool did not represent a fair
cross-section of the community because it did not contain a percentage of
minorities in proportion to their presence in the county. In order to show a prima facie
violation of the Sixth Amendment fair cross-section requirement, a defendant must
show:
(1) that the group alleged to be excluded is a
"distinctive" group in the community; (2) that the representation of
this group in venires from which juries are selected is not fair and reasonable
in relation to the number of such persons in the community; and (3) that this
under-representation is due to systematic exclusion of the group in the
jury-selection process.
Pruitt, 95 Wis.2d at 74-75, 289 N.W.2d at 345, quoting Duren,
439 U.S. at 364. We conclude that
Jackson has not shown that minorities were systematically excluded from the
jury selection process.
Lawrence
E. Flynn, the clerk of the Racine County Circuit Court, testified that the
names of potential jurors are selected from voter registration and driver's
license lists and that 12,000 questionnaires were sent out to form the jury pool
from which Jackson's jurors were drawn.
The questionnaire asked prospective jurors to identify their race.[10] A jury pool of 3250 was established and of
that number of respondents, at least 10%, or 325, were acknowledged members of
minorities. All questionnaires returned
by individuals identifying themselves as members of a racial or ethnic minority
were placed in the jury pool to fulfill and possibly exceed the requirement
that there be at least 325 such questionnaires in the 3250-person jury pool.[11]
Based
on this testimony, we cannot conclude that minorities were systematically
excluded from the jury pool from which Jackson's jurors were drawn. Additionally, we conclude that the fact that
minorities comprised at least 10% of the jury pool in contrast to their status
as 16% of Racine County's population satisfied the "substantial
representation" requirement established in Pruitt.
In
Pruitt, the court concluded that young adults are a distinctive
group whose systematic exclusion from jury service would violate the fair
cross-section requirement. Id.
at 75-76, 289 N.W.2d at 345-46.
However, the court went on to hold that the fact that young adults
serving on several previous jury panels constituted 12.7% of those called when
their proportion of the county's population was 25% did not violate the fair
cross-section requirement because they were fairly and reasonably represented. Id. at 78, 289 N.W.2d at
347. The Pruitt court
noted that "[t]he jury pool need not be a statistical mirror of the
community. Absolute proportional
representation is not required. The
fair-cross-section requirement is met if substantial representation of a
distinctive group exists." Id.
at 78, 289 N.W.2d at 347 (citations omitted).
Moreover,
the disparity between the minority representation in the Racine County jury
pool (10%) and the county's population (16%) is de minimis. See United States v. McAnderson,
914 F.2d 934, 941 (7th Cir. 1990) (holding that district in which blacks
comprised 20% of its population but only 12% of a particular jury venire was de
minimis disparity and not violative of fair cross-section right). "As the Supreme Court has noted,
discrepancies of less than ten percent, standing alone, cannot support a claim
of underrepresentation." Id.
at 941.[12] Because Jackson has not satisfied the third
prong of the Duren test, his challenge to the jury pool fails.
By the Court.—Judgment
and order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] By the time Cruz
undertook Jackson's case, the time for filing a motion for substitution had
passed. See § 971.20, Stats.
[2] Cruz did file a
motion to recuse based upon the fact that Judge Ptacek presided over the trial
of Jackson's co-actor, Berry. That
motion was denied and is not the subject of this appeal.
[4] Indeed, the
trial court should consider alternatives to a mistrial. State v. Calhoun, 67 Wis.2d
204, 219, 226 N.W.2d 504, 511 (1975).
[6] The trial court
noted that Jackson declined to be interviewed by the author of the presentence
investigation report.
[8] In fact, the
trial court contrasted the length of Jackson's criminal record with Berry's
less lengthy one.
[9] Here, as the
State points out, the record does not indicate that Jackson presented evidence
of the number or percentages of African-Americans within the Racine County population. Additionally, the record on appeal does not
include an exhibit to Jackson's pretrial motion which contained the census data
relied upon by Jackson in the trial court.
[10] At the time this
jury pool was created, respondents were not required to identify themselves by
race.
[11] As the State
points out, because the questionnaire did not require the respondent to
identify his or her racial origin, it is possible that more than 325 minorities
were included in the 3250- person jury pool.
[12] The record
reflects that six of the fifty-two jurors summoned for voir dire in Jackson's
trial were minorities, or 11.5% of the total individuals summoned. This representation in Jackson's voir dire
was higher than the minimum 10% required to be included in the annual jury pool
and reduces the discrepancy between the Racine County minority population and
the minority representation in the jury venire. As we held earlier, we are addressing the overall minority
representation in the jury pool, rather than Jackson's challenge to the number
of African-Americans in the pool.