COURT OF APPEALS DECISION DATED AND RELEASED September 13, 1995 |
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Nos. 94-2015-CR
94-2016-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JEFFREY W. HOLZEMER,
Defendant-Appellant.
APPEALS from judgments
and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge.
Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. In these consolidated appeals, Jeffrey W.
Holzemer appeals from judgments convicting him of numerous crimes arising from
a string of armed robberies and from an order denying his postconviction
motions. On appeal, Holzemer argues
that he did not receive effective assistance from his trial counsel and that
the trial court misused its sentencing discretion. We disagree and affirm.
Holzemer and a
codefendant, Matthew DeRosch,[1]
were tried together for armed robbery while masked of one motel,[2]
two book stores, three video stores and an individual. They were also tried on two counts of
conspiracy to commit armed robbery while masked, one count of possessing a
firearm as a felon and one count of possession of a short-barrelled shotgun.[3] In total, Holzemer was convicted of four
counts of being party to the crime of armed robbery while masked, two counts of
conspiracy to commit armed robbery while masked, one count of being party to
the crime of being a felon in possession of a firearm and one count of being
party to the crime of possession of a short-barrelled shotgun, all as a
repeater. Holzemer was acquitted and
DeRosch was found guilty of the motel robbery.
Holzemer and DeRosch were acquitted of one of the book store robberies.
INEFFECTIVE ASSISTANCE
Holzemer
argues that his trial counsel was ineffective because he: (1) failed to seek severance;
(2) failed to pursue an alibi defense; (3) failed to give an opening
statement; (4) failed to effectively cross-examine witnesses;
(5) failed to give a meaningful closing argument to the jury; (6) failed
to use an investigator available through the state public defender's office;
(7) failed to request a limiting instruction each time a witness testified
solely about DeRosch's conduct; and (8) failed to make a meaningful
presentation at sentencing.
To establish that trial
counsel was ineffective, 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. In reviewing counsel's performance, we strive to avoid
determinations of ineffectiveness based on hindsight. State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d
845, 847 (1990). We view the case from
counsel's perspective at the time of trial, and the defendant has to overcome a
strong presumption that counsel acted reasonably within professional
norms. Id. at 127, 449
N.W.2d at 847-48. We assess trial
counsel's performance under 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. State v. Felton,
110 Wis.2d 485, 502-03, 329 N.W.2d 161, 169 (1983).
Even if counsel performed
deficiently, a judgment will not be reversed unless the defendant proves that
the deficiency prejudiced the defense. Johnson,
153 Wis.2d at 127, 449 N.W.2d at 848.
The defendant must show that there is 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). In applying this
principle, reviewing courts are instructed to consider the totality of the
evidence before the trier of fact. Id.
at 129-30, 449 N.W.2d at 848-49.
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. 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.
We conclude that trial
counsel's decisions regarding severance, alibi, reservation of opening
statement, cross-examination and closing were a function of counsel's trial
strategy. At the postconviction motion
hearing, trial counsel testified that his strategy was to minimize Holzemer's
involvement in the charged crimes.[4] Trial counsel sought to "show that
there was just as much evidence against the [co‑actors] to create reasonable
doubt that [Holzemer] committed a good number of the crimes." Counsel emphasized that this was his
strategy even before co-actors Arthur Gerth and Onwar Armahad agreed to enter
pleas and testify against DeRosch and Holzemer. The testimony of Gerth and Armahad tied DeRosch and Holzemer to
the robberies and conspiracies.
(1) Severance
On
the question of whether Holzemer's trial should have been severed from
DeRosch's, trial counsel testified that he discussed severance with Holzemer
but believed that "the better strategy was to try this case with
DeRosch."[5] Trial counsel conceded that once Gerth and
Armahad agreed to enter pleas shortly before trial which obligated them to
testify at the Holzemer-DeRosch trial, he should have moved to sever Holzemer's
trial from DeRosch's.[6] However, counsel also stated that the
proximity of the co-actors' plea agreements to the start of trial made it
unlikely that the trial court would have granted a motion to sever. The trial court confirmed it would not have
granted a severance motion. The trial
court also found that trial counsel's strategy of having Holzemer assume a
diminished role in contrast to DeRosch would not have been served by severing
Holzemer's trial from DeRosch's.
Even if counsel acted
outside professional norms vis-a-vis severance, we conclude that Holzemer has
not established that he was prejudiced thereby. See Johnson, 153 Wis.2d at 127, 449 N.W.2d
at 848. He has not shown that but for
counsel's error, the outcome at trial would have been different. See id. at 129, 449
N.W.2d at 848.
Holzemer claims three
types of evidence would have been inadmissible had he been tried
separately: (1) evidence regarding counts with which he was not
charged; (2) evidence regarding matters concerning only DeRosch; and
(3) admissions by DeRosch.
However, the fact that evidence applicable to only one defendant will be
offered at a joint trial is not automatic grounds for severance, particularly
if the matter can be addressed by cautioning the jury that evidence against one
defendant may not be used against another.
Butala v. State, 71 Wis.2d 569, 580, 239 N.W.2d 32, 37
(1976). In these situations, giving a
cautionary instruction, which we assume the jury will follow, see State
v. Edwardsen, 146 Wis.2d 198, 210, 430 N.W.2d 604, 609 (Ct. App. 1988),
serves largely the same purpose as severance—preventing the jury from becoming
confused as to which evidence applies to which defendant. Butala, 71 Wis.2d at 579-80,
239 N.W.2d at 37.
As the verdicts
demonstrate, the jury heeded the various cautionary instructions it received
and was able to segregate evidence applicable only to DeRosch from evidence
applicable to Holzemer. We see no
evidence of jury confusion such that Holzemer was prejudiced by counsel's failure
to seek severance.
(2) Alibi Defense
With
regard to his decision not to call Holzemer's fiancee, Kris Boehm, to testify
as an alibi witness, trial counsel testified that he explored that possibility
but decided against it because he did not believe her testimony would provide
Holzemer with an alibi. Prior to trial,
Boehm told trial counsel that on August 22, 1992, Holzemer picked her up at
work at approximately 1:00 a.m. and that it took at least one-half hour to
reach her house from her employment.
The Crossroads Book Store robbery occurred on August 23 at approximately
2:00 a.m. Trial counsel testified that
he investigated the time it would have taken Holzemer to travel from Boehm's
job to her house at a slow rate of speed and concluded that Boehm's testimony
did not provide Holzemer with an alibi because there was time for him to pick
her up, drop her off, borrow her car to meet with the co-actors and participate
in the robbery. Boehm and Holzemer
parted company before the robbery and Holzemer had sufficient time to
participate in the robbery thereafter.
At the postconviction
motion hearing, Boehm gave different times for Holzemer's movements on the
night of August 22 and the early morning hours of August 23. Holzemer argues that this testimony provided
him with an alibi. However, the trial
court properly focused on what Boehm told trial counsel prior to trial, when he
had to decide whether Boehm could provide an alibi. The trial court found that based upon the information Boehm
provided trial counsel prior to trial, trial counsel "took great care to
investigate this possible alibi" but found that it would not be
successful. These findings are not
clearly erroneous. See Knight,
168 Wis.2d at 514 n.2, 484 N.W.2d at 541.
"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).
(3) Opening Statement
Holzemer
faults his trial counsel for not giving an opening statement. Counsel reserved his opening statement
because he would have largely repeated the statement made by DeRosch's counsel
and he desired to hear the testimony of the co-actors in the State's case
before making an opening statement.
After hearing the testimony, trial counsel did not feel that an opening
statement at the start of the defense's case would have been helpful.
The trial court found
that trial counsel's strategy was sensible for several reasons. First, it allowed trial counsel to avoid
making commitments to the jury regarding evidence which might later prove
troublesome. Second, an opening
statement "would have deflated what I thought was [trial counsel's] very
effective closing." Finally, trial
counsel's decision dovetailed with his strategy that DeRosch's counsel take the
lead in defending the joint case and buttressed his theory that Holzemer's
involvement in the crimes was minimal.
The trial court's findings are not clearly erroneous. See Knight, 168 Wis.2d
at 514 n.2, 484 N.W.2d at 541. These
findings do not support a conclusion that counsel's strategic decision to
forego an opening statement fell outside the prudent-lawyer standard. See Felton, 110 Wis.2d
at 502-03, 329 N.W.2d at 169.
(4) Cross-examination
Holzemer also complains
that his trial counsel did not effectively cross-examine witnesses. Trial counsel testified that his decisions
regarding cross-examination were guided by his overall trial strategy of
seeking to minimize Holzemer's involvement.
He and DeRosch's counsel had agreed that the latter would cross-examine
first. Holzemer's trial counsel did not
want to "rehash incriminating questions" and instead focused his
efforts on impeaching the co-actors (Gerth, Watson and Armahad) who testified
against Holzemer.[7] Although Holzemer makes numerous suggestions
as to how trial counsel should have conducted cross-examination, trial counsel
was not questioned about these matters at the postconviction hearing. In the absence of a record on these claims,
we will not address them. See State
v. Krieger, 163 Wis.2d 241, 253-54, 471 N.W.2d 599, 603 (Ct. App. 1991)
(trial counsel's testimony is necessary to support an ineffective assistance
claim).
(5) Closing Argument
Holzemer
challenges the efficacy of trial counsel's closing argument. Trial counsel began his closing argument by
informing the jury that his "remarks will be brief." He stated that had he "not [been]
playing second fiddle to [DeRosch's counsel] throughout this trial, I would
have asked many of the same questions he did, cross-examined the witnesses in a
manner similar to the way he did."
Counsel stressed that he was not going to "rehash" matters
already addressed by DeRosch's counsel in his closing argument. Counsel also noted that DeRosch's counsel
had carefully reviewed the inconsistencies in the State's case. Trial counsel asked the jury not to convict
Holzemer of offenses he did not commit and focused the jury's attention on the
witnesses who had incriminated Holzemer and his impeachment of them. Trial counsel urged the jury to consider
each charge against Holzemer and determine whether the State had shown him
guilty beyond a reasonable doubt.
At the postconviction
motion hearing, trial counsel testified that his goal in closing argument was
to supplement for Holzemer's benefit DeRosch's counsel's closing. The trial court found that Holzemer's
counsel's closing argument was "riveting" and drew attention to his
strategy of minimizing Holzemer's involvement and suggesting that DeRosch was
the primary actor.
On appeal, Holzemer
chides the trial court for characterizing his trial counsel's closing argument
as riveting and effective. Holzemer
contends trial counsel should have reviewed every count and the evidence
presented by the State in support of each count to demonstrate that the
evidence was insufficient. Holzemer
believes trial counsel conceded his guilt rather than argued his innocence.
Making a brief closing
argument does not give rise to a presumption of ineffectiveness. See State v. Wise, 879
S.W.2d 494, 524 (Mo. 1994), cert. denied, 115 S. Ct. 757 (1995). Trial strategy may support a decision to be
brief. See id. In assessing counsel's performance, we
review the totality of the record to assess whether counsel acted reasonably
within professional norms. Johnson,
153 Wis.2d at 127, 449 N.W.2d at 847-48.
The trial court's finding that trial counsel's closing argument was a
function of his overall trial strategy is not clearly erroneous. See Knight, 168 Wis.2d
at 514 n.2, 484 N.W.2d at 541. With
regard to closing argument, Holzemer has not overcome the "strong
presumption that counsel acted reasonably within professional norms." Johnson, 153 Wis.2d at 127,
449 N.W.2d at 847-48.
When viewed in the
context of counsel's trial strategy, counsel's decisions regarding severance,
an alibi defense, opening and closing statements and cross-examination are
sustainable as strategic or tactical decisions based upon a reasoned trial
strategy rationally based upon the facts and the law. See Felton, 110 Wis.2d at 502-03, 329 N.W.2d
at 169.
(6) Use of Investigator
Holzemer
criticizes trial counsel for failing to use an investigator available through
the public defender's office. At the
postconviction motion hearing, trial counsel gave contradictory testimony
regarding his use of an investigator.
Although trial counsel initially testified that he did not use a private
investigator, shortly thereafter he stated that he used the services of
investigator Terry O'Brien. However,
trial counsel then testified that he personally interviewed individuals in this
case and did not need a private investigator to assist him. The inconsistencies in trial counsel's
testimony were not explored at the postconviction hearing. The trial court implicitly found that trial
counsel need not have used an investigator if one was not necessary.
We need not consider
whether 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).
Holzemer has the burden to demonstrate prejudice. See Johnson, 153 Wis.2d
at 127, 449 N.W.2d at 848.
Holzemer posits that the
number of witnesses called to testify (thirty-nine) ought to have led trial
counsel to use an investigator. In
particular, Holzemer suggests that using an investigator to prepare the defense's
case would have enhanced trial counsel's cross-examination. However, as we have already discussed, trial
counsel's approach to cross-examination was governed by his overall trial
strategy. Furthermore, the postconviction
hearing record does not indicate the type of cross-examination questions
further investigation might have suggested.
Simply observing that counsel did not use funds allotted for an
investigator does not establish prejudice.
See United States v. Asubonteng, 895 F.2d 424, 428‑29
(7th Cir.) (no prejudice from counsel's failure to use court-appointed
investigator where there was no indication of which witnesses would have been
discovered or what they would have said), cert. denied sub nom. Rivers
v. United States, 494 U.S. 1089 (1990).
(7) Limiting Instructions
Holzemer
makes contradictory arguments regarding limiting instructions. He first contends that trial counsel failed
to request limiting instructions when necessary. He then argues that there were too many limiting instructions,
relying on the trial court's comment at the postconviction motion hearing that
it had never tried a case with so many limiting instructions. From this comment, Holzemer reasons that
"so many limiting instructions [were given] that they simply became
redundant and at times forgotten."
Therefore, Holzemer contends, trial counsel should have sought severance
of Holzemer's trial from DeRosch's.
Holzemer does not cite any authority for the proposition that the
frequent use of limiting instructions is prejudicial. Furthermore, we have already rejected Holzemer's argument that
trial counsel was ineffective for not seeking severance.
Holzemer's argument that
trial counsel was ineffective for not insisting on a limiting instruction for
each witness who testified about a count with which Holzemer was not charged is
inadequately briefed. He does not
adequately argue why limiting instructions were necessary or why some of the
instructions actually given were inadequate.[8]
Therefore, we will not consider this
issue. See State v. Pettit,
171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).
Even though we do not
address Holzemer's limiting instructions argument in detail, we note that
courts assume juries follow the instructions given to them. Edwardsen, 146 Wis.2d at 210,
430 N.W.2d at 609. Here, the jury was
instructed on several occasions that it was not to consider evidence of crimes
with which Holzemer was not charged.
Furthermore, we note that the jury acquitted Holzemer on two charges
(the Budgetel Motel and Crossroads Bookstore robberies) and convicted DeRosch
of the Budgetel robbery. The verdict
demonstrates that the jury sorted the evidence and was able to distinguish
between evidence which implicated Holzemer in a charged crime and evidence
which did not. See State
v. Bettinger, 100 Wis.2d 691, 699a, 303 N.W.2d 585, 590 (1981). We see no prejudice to Holzemer. See Johnson, 153 Wis.2d
at 127, 449 N.W.2d at 848.
(8) Representation at sentencing
Holzemer
contends that his trial counsel did not adequately represent him at sentencing
because he failed to bring to the trial court's attention the positive aspects
of Holzemer's life as set forth in the presentence investigation report. In particular, Holzemer points to references
in the report that he did not have any major violations of his parole
supervision and his adjustment appeared to be good, there was no alcohol or
drug use during his supervision, he was employed throughout his supervision,
attended school, was engaged to be married and cooperated with the probation
agent.
As we stated earlier, a
defendant challenging the effective assistance of counsel must preserve trial
counsel's testimony in the trial court.
See Krieger, 163 Wis.2d at 253, 471 N.W.2d at
603. Here, trial counsel's testimony
regarding his approach to sentencing is not preserved.
Notwithstanding the
absence of counsel's testimony on this point, we conclude that Holzemer's
contention that trial counsel did not highlight the positive aspects of his
character is not borne out by the record.
Trial counsel referred to Holzemer's progress since being paroled and
mentioned that he had obtained employment and was enrolled in college. Trial counsel stuck to his strategy of
minimizing Holzemer's culpability by arguing that the robberies were committed
while armed and that Holzemer's prior criminal record did not include offenses
involving weapons. He further argued
that DeRosch was the ringleader.
Counsel acknowledged the nature of the crimes for which Holzemer was
convicted and that his prior record would probably result in a sentence
commensurate with the seriousness of the offenses.[9] However, trial counsel urged the trial court
to give Holzemer a chance "to redeem himself." Based on this partial record, we do not
agree that trial counsel performed deficiently at sentencing.
SENTENCING
Holzemer argues that his
eighty-five year sentence was excessive and the trial court did not refer to
the sentencing guidelines. We review
whether the trial court misused its sentencing discretion. State v. J.E.B., 161 Wis.2d
655, 661, 469 N.W.2d 192, 195 (Ct. App. 1991), cert. denied, 112 S. Ct.
1484 (1992). We presume that the trial
court acted reasonably, and the defendant must show that the trial court relied
upon an unreasonable or unjustifiable basis for its sentence. Id. The weight given to each of the sentencing factors is within the
sentencing judge's discretion. Id.
at 662, 469 N.W.2d at 195. Public
policy strongly disfavors appellate courts interfering with the sentencing
discretion of the trial court. State
v. Teynor, 141 Wis.2d 187, 219, 414 N.W.2d 76, 88 (Ct. App. 1987). We conclude that the trial court properly exercised
its discretion in sentencing Holzemer and that its sentence does not shock
public sentiment. See id.
The primary factors to
be considered by the trial court in imposing a sentence are the gravity of the
offense, the offender's character and the need to protect the public. State v. Borrell, 167 Wis.2d
749, 773, 482 N.W.2d 883, 892 (1992).
At the sentencing hearing,[10]
the trial court commented upon the gravity of the offenses, Holzemer's
character and history of criminal conduct, and the need to protect the
public. The trial court noted that
Holzemer had been unable to control his behavior even after previous prison
experiences.
Holzemer argues that the
trial court sentenced him without referring to the presentence investigation
report. However, at the postconviction
motion hearing, the trial court affirmed that it had read the presentence
investigation report. The court also
observed that it could have sentenced Holzemer to 212 years, the maximum
possible sentence.
We discern no misuse of
the trial court's sentencing discretion.
Holzemer has not shown that the trial court relied upon an unreasonable
or unjustifiable basis in sentencing him to eighty-five years in prison. See J.E.B., 161 Wis.2d
at 661, 469 N.W.2d at 195.
Holzemer complains that
the trial court did not consider the sentencing guidelines. A defendant cannot challenge a sentence
based on the use or nonuse of the sentencing guidelines. State v. Halbert, 147 Wis.2d
123, 129-33, 432 N.W.2d 633, 636-37 (Ct. App. 1988). While the supreme court considered this aspect of Halbert
in State v. Speer, 176 Wis.2d 1101, 501 N.W.2d 429 (1993), only
three of the six justices hearing Speer agreed that Halbert
was wrongly decided on this point. See
Speer, 176 Wis.2d at 1122-23, 501 N.W.2d at 436. A majority must agree on a particular point
for it to be considered the court's opinion.
See State v. Dowe, 120 Wis.2d 192, 194, 352 N.W.2d
660, 662 (1984). Thus, Halbert
remains the law and Holzemer may not appeal his sentence on the basis that the
trial court did not consider the sentencing guidelines.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] We affirmed Matthew DeRosch's convictions in State v. DeRosch, Nos. 94-0131-CR, 94‑0132-CR and 94-0133-CR, unpublished slip op. (Wis. Ct. App. Nov. 23, 1994).
[3] DeRosch was also charged with armed robbery while masked of a hair design studio and a liquor store. Holzemer was not charged in these crimes.
[4] The criminal complaint named Holzemer and three codefendants, Onwar Armahad, DeRosch and Henry Watson. Gerth was charged in a separate complaint. Watson was granted immunity and agreed to testify against DeRosch and Holzemer. The week before trial, Armahad agreed to enter guilty pleas.
[5] Holzemer filed a pro se motion to sever while he was represented by counsel and complains on appeal that the motion was never scheduled for a hearing. We need not address this claim because a defendant does not have a constitutional right to appear pro se when he or she is represented by counsel. State v. Debra A.E., 188 Wis.2d 111, 138, 523 N.W.2d 727, 737 (1994).
[6] Although counsel conceded at the postconviction motion hearing that he should have filed a motion to sever, we look to the entire record to determine if counsel's performance was deficient and, if so, whether Holzemer was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984). Such a concession is not binding in our analysis.
[7] Although the robberies were established by the victims, the co-actors' testimony tied Holzemer to them.
[8] We note that at the postconviction motion hearing, Holzemer asked trial counsel whether there was confusion as to which defendant witnesses were testifying about. Trial counsel said he did not believe there was such confusion. Furthermore, the attorneys generally asked witnesses to identify which actor they were referring to.
[9] Holzemer's counsel was present when DeRosch was sentenced and heard the trial court's perspective on the crimes and the defendants' culpability. At Holzemer's sentencing, trial counsel seemed to acknowledge the trial court's views but attempted to distinguish his client's culpability from that of DeRosch.
[10] Immediately after the jury returned its verdicts, the trial court sentenced Holzemer to eight years, the maximum term, for possessing a short-barrelled weapon while a felon. The trial court sentenced Holzemer immediately on this least serious count so that he could be moved to prison from the overcrowded jail. Trial counsel objected on the grounds that he was not prepared to argue regarding a sentence. However, the trial court did not deny trial counsel an opportunity to argue regarding the sentence and Holzemer did not avail himself of the opportunity given him by the trial court to make a statement prior to sentencing on the weapon possession charge.