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COURT OF APPEALS DECISION DATED AND RELEASED April 17, 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. 94-0837
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL CRUZ,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Kenosha County: RICHARD G. HARVEY, JR., Reserve Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Michael Cruz appeals from an order denying his
§ 974.06, Stats., motion for
postconviction relief. While the appeal
was being briefed, our supreme court decided State v. Escalona-Naranjo,
185 Wis.2d 168, 517 N.W.2d 157 (1994).
Because the ineffective assistance of trial counsel claim Cruz raised in
his § 974.06 motion was not raised in his direct appeal, Cruz moved this
court to remand to the circuit court to determine whether he had a sufficient
reason as required by Escalona for not having raised the issue in
his direct appeal. We construed the
court's decision on remand as a finding that Cruz had a sufficient reason for
not raising his ineffective assistance of trial counsel claim in his direct
appeal.
On appeal, the parties
address: (1) whether Cruz had a
sufficient reason under Escalona for not having raised his
ineffective assistance of trial counsel claim in his direct appeal and (2)
whether trial counsel was in fact ineffective for failing to ensure that Cruz
understood the trial court proceedings in light of his hearing loss and
language and comprehension difficulties.
Because the trial
court's finding that Cruz had a sufficient reason for not having raised his
ineffective assistance of trial counsel claim on direct appeal is supported by
the Escalona record, we will reach the merits of his § 974.06, Stats., motion. We agree with the trial court that Cruz's
trial counsel effectively responded to Cruz's various impairments. Accordingly, we affirm the order denying
Cruz's § 974.06 motion.
In November 1987, we
affirmed Cruz's conviction for first-degree homicide, as party to the crime,
and aggravated battery.[1] Cruz challenged evidentiary rulings, the
sufficiency of the evidence to establish intent for purposes of submitting a
first-degree homicide charge to the jury, and the first-degree homicide, party
to a crime, jury instruction. We
affirmed the conviction.
In January 1992, Cruz,
with the assistance of counsel, filed a § 974.06, Stats., motion alleging that he did not fully comprehend the
trial court proceedings as a result of his hearing loss, difficulties in
comprehending English and Spanish, language development and various
communication problems and that his trial counsel was ineffective in the manner
in which she responded to these impairments.
In September 1992, the trial court held a multi-day Machner[2]
hearing on the question of trial counsel's effectiveness. In its decision denying Cruz's motion, the
court found that trial counsel performed effectively. Cruz appealed from that decision, and we remanded for Escalona
proceedings. Those proceedings
addressed whether appellate counsel was ineffective for failing to raise this
issue in Cruz's appeal from the judgment of conviction.
Under Escalona,
a defendant who raises in a § 974.06, Stats.,
motion an issue which could have been raised on direct appeal must demonstrate
a sufficient reason for not having done so before being allowed to do so in a
§ 974.06 motion. Escalona,
185 Wis.2d at 184-86, 517 N.W.2d at 163-64.
The State argues that Cruz has not shown a sufficient reason for failing
to raise his ineffective assistance of trial counsel claim in his direct appeal
because he has not shown that he was prejudiced by appellate counsel's failure
to do so. The State also argues that an
ineffective assistance of appellate counsel claim should have been raised in a
habeas corpus petition filed under State v. Knight, 168 Wis.2d
509, 484 N.W.2d 540 (1992).
We decline the State's
invitation to address whether, when the alleged sufficient reason is
ineffective assistance of appellate counsel, such needs to be pursued by way of
a Knight petition.
Additionally, we decline to address the State's argument that Cruz had
to demonstrate prejudice as well as deficient performance of appellate counsel
to establish a sufficient reason because the State did not raise this issue
when Cruz requested a remand for an evidentiary hearing and only alluded to it during
argument at the close of the Escalona proceedings.[3] We decline to address this argument after
proceedings on remand have concluded.
The Escalona
court did not define "sufficient reason." However, our supreme court's concern with finality in litigation,
including criminal cases, "demands that delay not be excused unless there
is a legitimate reason that excuses the delay." State v. Kazee, 192 Wis.2d 213, 223, 531 N.W.2d
332, 336 (Ct. App. 1995) (citing the sufficient reason standard of
§ 974.06(4), Stats., as
applied in Escalona).
After the Escalona
hearing, the trial court adopted Cruz's proposed findings of fact that his
original appellate counsel did not investigate whether he understood the trial
court proceedings. The court found that
had appellate counsel met with Cruz (in lieu of conferring over the telephone
through a social worker acting as an interpreter), he would have discerned
Cruz's various disabilities and comprehension problems and been prompted to
investigate whether Cruz understood the trial court proceedings. Based upon the record of the Escalona
hearing, we conclude that these findings are not clearly erroneous, see
§ 805.17(2), Stats., and that
Cruz demonstrated a sufficient reason for not challenging trial counsel's
assistance in his direct appeal.
We turn to the merits of
Cruz's § 974.06, Stats.,
motion: whether trial counsel was
ineffective for failing to ensure that Cruz understood the trial court
proceedings. 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.
Trial counsel's
representation must be equivalent to that which the ordinarily prudent
attorney, skilled and versed in criminal law, would give to clients who had
privately retained his or her services.
State v. Harper, 57 Wis.2d 543, 557, 205 N.W.2d 1, 9
(1973). In applying the
"prudent-lawyer" standard, we consider if trial counsel's decisions
were based on the law and the facts as they existed when trial counsel's
conduct occurred and upon which an ordinarily prudent lawyer would have then relied. See State v. Felton,
110 Wis.2d 485, 502-03, 329 N.W.2d 161,
169 (1983). Trial counsel's duty was to
make a reasonable investigation. State
v. Hubert, 181 Wis.2d 333, 343-44, 510 N.W.2d 799, 803 (Ct. App. 1993)
(citing Strickland, 466 U.S. at 691).
Review of counsel's
performance gives 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.
The question of 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). An appellate court 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. Knight, 168 Wis.2d at 514
n.2, 484 N.W.2d at 541. However, the
final determination of whether counsel's performance was deficient is a
question of law which this court decides without deference to the trial
court. See id. If counsel's performance was not deficient,
we need not consider the prejudice prong of the Strickland
test. See Strickland, 466
U.S. at 697 (appellate court can address the two components in any order it
chooses).
In analyzing whether
trial counsel performed deficiently, we start with the fact that Cruz was tried
in 1983. We review the case from
counsel's perspective at the time of trial.
Johnson, 153 Wis.2d at 127, 449 N.W.2d at 847-48. After the Machner hearing, the
trial court made the following findings of fact regarding trial counsel's
conduct and strategy. Cruz speaks a
"Tex-Mex" Spanish dialect.
Trial counsel spoke Spanish fluently and was experienced in criminal
defense but had difficulty communicating with Cruz due to Cruz's hearing loss
and language deficiency. Aware of these
difficulties, trial counsel sought a competency evaluation to determine whether
Cruz suffered from any mental disease or defect which would preclude a fair
trial. The results of the competency
examination revealed that Cruz did not suffer from such a defect. However, the evaluations did reflect his
education, hearing and comprehension deficits.
It was undisputed that
trial counsel employed three to four different interpreters before she decided
that Frances Lopez was able to communicate most effectively with Cruz. Trial counsel prepared Cruz to testify at
trial by reviewing questions and answers with him so that he would be familiar
with and understand her examination.
Additionally, trial counsel had Lopez read to Cruz translations of
police reports and statements of the State's witnesses. The court found that the quality of trial
counsel's representation was exceedingly high.
While Cruz testified at
the § 974.06, Stats., motion
hearing that he did not understand his trial counsel's Spanish and much of
Lopez's translation during trial, the trial court found that Cruz's
comprehension at trial exceeded the level he claimed nine years later. The court found that Cruz's trial testimony
was much clearer and more responsive than that which he gave at the
postconviction motion hearing.
These findings are not
clearly erroneous in light of the evidence adduced at the postconviction motion
hearing. Trial counsel was aware of
Cruz's weaknesses in the areas of education, language development and speech,
communication and comprehension, and his documented hearing loss. She recognized the need to procure an
interpreter who could work with Cruz and finally settled upon Lopez as the
interpreter most likely to understand and be able to communicate with
Cruz. Counsel testified that she was
"absolutely satisfied" that, through Lopez, Cruz advised her of his
theory of the case and possible defenses and that she was able to convey the
State's case to him, except for the State's technical scientific evidence. She testified that Cruz was able to assist
in his own defense. Trial counsel made
the trial court aware of her concerns regarding Cruz's level of comprehension.
Viewing these events
from counsel's perspective in 1983, we conclude that trial counsel's
representation was that which would have been provided by an ordinarily prudent
lawyer under the same facts and circumstances.
See Harper, 57 Wis.2d at 557, 205 N.W.2d at 9. Trial counsel investigated her concerns
regarding Cruz's level of comprehension and took steps based upon that
investigation designed to improve Cruz's comprehension. Trial counsel discharged her duty to
investigate this matter. See Hubert,
181 Wis.2d at 343-44, 510 N.W.2d at 803.[4] Trial counsel did not perform deficiently in
the manner in which she responded to Cruz's hearing loss and other deficits.
Cruz contends that he is
entitled to a new trial because he did not sufficiently understand the 1983 trial
proceedings. Specifically, he argues
that his inability to fully understand the proceedings violated his Sixth
Amendment rights to be meaningfully present at his own trial, assist in his own
defense and confront the government's witnesses on cross-examination.[5] Cruz also alleges that his Fifth and
Fourteenth Amendment due process rights were violated because he lacked the
capacity to understand the proceedings, consult with counsel or assist in the
preparation of his defense.
We have already held
that trial counsel took prudent and reasonable steps to address Cruz's
disabilities insofar as they impacted on his ability to participate at trial
and understand the proceedings. As part
of the Machner hearing, the trial court found that "[trial
counsel] really achieved a rather good level of communication with Michael Cruz"
in preparing him to testify at trial, that the charged crimes were not complex
and that Cruz had "a good opportunity to assert his defense, particularly
with the skillful training given him by [trial counsel]."
A criminal defendant has
a due process right to be meaningfully present at his or her trial. United States v. Cirrincione,
780 F.2d 620, 633 (7th Cir. 1985). For
this right to have any meaning, the defendant must possess sufficient present
ability to consult with his or her lawyer with a reasonable degree of rational
understanding. Id.
(citing Dusky v. United States, 362 U.S. 402 (1962) (per
curiam)).
In Cirrincione,
one of the defendants claimed that the absence of an official interpreter at
trial denied him procedural due process.
Id. at 633. The
Seventh Circuit Court of Appeals held that “a defendant in a criminal
proceeding is denied due process when:
(1) what is told him [or her] is incomprehensible; (2) the accuracy and
scope of a translation at a hearing or trial is subject to great doubt; (3) the
nature of the proceeding is not explained to him [or her] in a manner designed
to ensure his [or her] full comprehension; or (4) a credible claim of
incapacity to understand due to language difficulty is made and the district
court fails to review the evidence and make appropriate findings of
fact." Id. at
634. Even though Cirrincione
was decided two years after Cruz was convicted, we conclude that even if these
standards apply to this case, Cruz was not denied due process. The trial court's findings of fact regarding
Cruz's level of comprehension and the assistance rendered by trial counsel lead
us to conclude that Cruz was "meaningfully present" at his trial and
that his due process rights were satisfied.
We turn to the Cirrincione
factors. On the question of whether
what Cruz was told as part of trial proceedings was incomprehensible, the
record reveals that while Cruz testified at the 1992 Machner
hearing that he could hear and understand "very little" of what his
translator told him during the trial, at the start of his direct examination
during the 1983 trial he stated he could hear the interpreter and understand
what she was saying to him. Cruz then
answered questions on direct and cross-examination, and the interpreter asked
for an opportunity to repeat or clarify questions for Cruz as it became
necessary. When this record is
considered in conjunction with trial counsel's testimony that Cruz understood
the case and participated in his defense, the first prong is not satisfied.
The second prong,
whether the accuracy and scope of translation is subject to grave doubt, is
also not satisfied on this record. The
same translator used at trial was retained for purposes of the postconviction
motion hearing nine years later because she was the interpreter who had the
best communication with Cruz. During
Cruz's trial testimony, the translator was admonished to be certain that she
was relaying Cruz's answers and not modifying them. Cruz has not established the requisite level of doubt.
The third prong, whether
the nature of the proceeding was explained to Cruz in a manner designed to
ensure his comprehension, is also not supported in this record. Trial counsel testified that she explained
the nature of the charges and the proceeding to Cruz in a simplified manner
designed to ensure his understanding.
Additionally, in an April 1983 evaluation of Cruz as part of the
competency evaluation, a doctor opined that Cruz understood the charged crimes
and had a general understanding of the possible consequences of being found
guilty, along with a general understanding of the roles of the judge,
prosecutor and defense counsel. Trial
counsel was satisfied that Cruz knew the facts testified to by witnesses to the
crime and police officers and that he was able to assist her in preparing his
defense. While Cruz may not have
comprehended every aspect of his trial, his demonstrated level of comprehension
was sufficient to preclude satisfaction of part three of the Cirrincione
test.
Finally, Cruz has not
satisfied the fourth prong of the Cirrincione test which requires
that the trial court failed to make appropriate findings of fact when advised
of a defendant's language difficulties.
Here, accommodations were made at trial to permit translation.
Cruz contends that he
was denied his constitutional right to an interpreter throughout trial because
he was unable to understand much of what the interpreter said and because the
interpreter was drafted to act as the court's official interpreter when another
Spanish-speaking witness, Arturo Salcedo, testified. Without deciding whether a federal constitutional right to an
interpreter exists, our supreme court held in State v. Neave, 117
Wis.2d 359, 365‑66, 344 N.W.2d 181, 184 (1984), "that as a matter of
judicial administration, and to avoid questions of effective assistance of
counsel and questions of whether inability to reasonably understand testimony
resulted in a loss of an effective right to cross-examination, ... [f]airness
requires that such persons who may be defendants in our criminal courts have
the assistance of interpreters where needed."
The trial court in this
case found that trial counsel prepared Cruz for trial by using the interpreter
to rehearse him for his testimony and to get his views of translated police
reports and witness statements.
Furthermore, trial counsel had access to the transcripts of the trial of
Michael Cruz's brother, where Salcedo also testified. Salcedo testified at Michael's trial that Michael stabbed him in
a fight. Michael testified that he did
not stab Salcedo. In light of the steps
trial counsel took to prepare Cruz to testify, her access to transcripts of
Salcedo's previous testimony and her belief that Cruz understood all of the
transaction witnesses, we conclude that the absence of an interpreter during
Salcedo's testimony did not deny Cruz his right to confront or cross-examine
Salcedo, assist in his own defense, consult with counsel or be meaningfully
present at trial.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[3] Additionally, the parties' post-Escalona proceeding briefs are not included in the record on appeal to demonstrate that the State raised this issue in the trial court. Generally, we do not decide issues raised for the first time on appeal, see Sears v. State, 94 Wis.2d 128, 140, 287 N.W.2d 785, 790‑91 (1980), and we decline to depart from that practice in this case.