PUBLISHED OPINION
Case No.: 94-2256-CR
†Petition for
Review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,†
v.
ANTHONY T. HICKS,
Defendant-Appellant.
Submitted
on Briefs: June 13, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 29, 1995
Opinion
Filed: June
29, 1995
Source
of APPEAL Appeal from a judgment and an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Robert
R. Pekowsky
so
indicate)
JUDGES: Gartzke,
P.J., Dykman and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Stephen P. Hurley and John D.
Hyland of Hurley, Burish & Milliken, S.C. of Madison.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
and James M. Freimuth, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED June
29, 1995 |
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,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2256-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTHONY
T. HICKS,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dane County: ROBERT R. PEKOWSKY, Judge. Reversed and cause remanded with
directions.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
VERGERONT, J. Anthony
Hicks appeals from a judgment convicting him of one count of burglary contrary
to § 943.10(1)(a), Stats.,
one count of robbery contrary to § 943.32(1)(a), Stats., and two counts of second-degree sexual assault
contrary to § 940.225(2)(a), Stats.,
and from an order denying his motion for a new trial. He challenges the convictions on a number of grounds, but we
decide only one. We conclude Hicks's
trial counsel was ineffective and we therefore reverse the judgment and the
order and remand for a new trial.
BACKGROUND
The
convictions are the result of charges that on the morning of November 15, 1990,
Hicks gained entry to the apartment of Diane F. with intent to commit a felony,
and that once inside the apartment he forced her into two separate acts of
sexual intercourse and robbed her of $10.
At
trial, Diane F. testified that she heard a knock on her apartment door, looked
through the peephole for approximately ten seconds, and saw a black man who
told her that he was her upstairs neighbor.
The man asked to use her telephone because his was broken. Diane F. let the man into her apartment and
led him to the phone. While she was in
the bathroom getting ready for work, she saw the man's face behind her in the
mirror. He threw a scarf around her
head and neck, blinding her with both the scarf and her hair. During the assault that followed, she caught
glimpses of his face and he spoke to her intermittently. According to Diane F., the assailant was in
her apartment between 7:25 a.m. and 7:55 a.m.
Diane F. picked out Hicks as her assailant from an eight-man lineup
conducted two days after the assault.
It
was stipulated that Hicks was living in the same apartment complex as Diane F.
and the two apartments were ninety seconds away by walking.
The
State presented testimony from a state crime lab analyst that, based on a
microscopic examination, a Negro head hair found on the comforter of Diane F.'s
bed and four Negro pubic hairs found when the police conducted a vacuum
sweeping of the apartment approximately fifteen days after the assault were
"consistent" with the samples provided by Hicks. The analyst also testified that a Caucasian
head hair was found inside the pants Hicks was wearing when he was taken into
custody forty-eight hours after the assault.
These pants were not the sweat pants Diane F. testified were worn by her
assailant. The Caucasian head hair was
found when the pants were examined a few weeks later. The crime lab analyst testified that, based on a microscopic
examination, the Caucasian head hair was "consistent" with a sample
provided by Diane F.
The crime lab analyst explained that all
Negro hair shares the same characteristics and all Caucasian hair shares the
same characteristics, although not all Negro hair is identical and not all
Caucasian hair is identical. She also
testified that a microscopic comparison of hair, unlike fingerprints, can never
yield a definitive identification. She
stated that to a reasonable degree of scientific certainty, the unknown Negro
and Caucasian hair specimens "could have" come from Hicks and Diane
F. respectively. Other than the
microscopic comparisons, the State performed no other tests on the hair
samples.
The
State performed serological testing on specimens of semen, blood and saliva
obtained at the crime scene. These
results were inconclusive. Pursuant to
the motion of Hicks's trial counsel, the semen was sent to a laboratory outside
the state for DNA analysis. These
results were inconclusive.
Diane
F. testified that no black male had ever been in her apartment before the
assault and that only once, almost two years before the assault, was a black
female in her apartment. This woman
wanted to borrow a blanket.
A
defense witness, Savannah Williams, testified that she was living with Hicks at
the time of the assault. On that
morning, Hicks left their apartment at about 6:40 a.m. to meet his ride for
work. He had been complaining that he
was not feeling well. According to
Williams, Hicks returned after about twenty minutes saying he was not going to
work that morning. She was with him,
she testified, until about 7:00 a.m., when she left for Rockford,
Illinois. She identified a call on the
telephone bill made to her mother's house in Rockford at 8:12 a.m., which she
said was made by Hicks, reaching her just after she arrived at her
mother's.
Hicks's
employer testified that Hicks called his place of employment sometime between
7:00 a.m. and 7:30 a.m. that morning to say he would not be in.
After
Hicks's conviction and sentencing, Hicks had a DNA analysis performed at
Cellmark Diagnostics in Germantown, Maryland, on the unknown hair
specimens. He then moved for a new
trial contending, among other claims, that his trial counsel had been
ineffective in not having DNA testing done on the hair specimens.
At
the evidentiary hearing on the motion, Dr. Charlotte Word of Cellmark testified
that the unknown Caucasian head hair, the unknown Negro head hair, and two of
the unknown Negro pubic hair specimens did not yield DNA sufficient for
analysis. Specimens 012 and 013 were
the two pubic hair specimens for which enough DNA was obtained. Word testified that specimen 012 revealed
the presence of DNA from two sources.
This usually indicates, Word said, presence of a second source of DNA on
the hair itself, such as blood, semen or saliva. Because of the two sources of DNA, the results as to this
specimen were inconclusive. Hicks was
excluded as the source of the main amount of DNA on specimen 012, but Word
could not come to a conclusion as to the fainter source of DNA on specimen 012.
As
for specimen 013, the DNA from this sample was compared to the DNA extracted
from Hicks's blood sample. Word
testified that Hicks was excluded as the source of the DNA from this specimen. Word testified that, in her opinion to a
reasonable degree of scientific certainty, Hicks was not the donor of hair
specimen 013. Word acknowledged that
this opinion was based on the assumption that the DNA on specimen 013 was from
a single source. She could not prove
the DNA was from a single source, but that was the most reasonable conclusion
based on several factors, and there was no information to suggest it was not
from a single source.
The
trial court denied Hicks's motion for a new trial. It concluded that there was no prejudice to Hicks as a result of
his counsel's failure to obtain DNA test results for trial because it was not
reasonably probable a new trial with the DNA testimony would result in a
different verdict. The trial court
based this conclusion on what it considered substantial evidence against Hicks,
most importantly Diane F.'s identification of Hicks.
DISCUSSION
The Sixth Amendment
right to counsel is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970). To prevail on his
claim for denial of effective assistance of counsel, Hicks must show that his
trial counsel's performance was deficient and that this deficient performance
prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The performance inquiry determines whether counsel's assistance
was reasonable under prevailing professional norms and considering all the
circumstances. Id. at
688. A defendant must overcome the
presumption that, under the circumstances, the challenged action of trial
counsel might be considered sound trial strategy. Id. at 689.
Under
the prejudice prong, the defendant must show there is a reasonable probability
that, but for counsel's errors, the result of the proceeding would have been
different. Strickland,
466 U.S. at 694. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id.
The
trial court's determinations of what the attorney did and did not do, and the
basis for the challenged conduct, are factual and will be upheld unless clearly
erroneous. State v. Johnson,
153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). The ultimate determinations of whether counsel's performance was
deficient and prejudicial to the defense are questions of law that this court
reviews independently. Id.
at 128, 449 N.W.2d at 848.
The
trial court did not determine whether Hicks's trial counsel's performance was
deficient and it made no factual findings on this issue. However, Hicks's trial counsel's testimony
at the postconviction hearing was not disputed. We therefore review his testimony in the context of the entire
proceeding to determine whether, as a matter of law, his representation fell
below an objective standard of reasonableness.
See State v. Marty, 137 Wis.2d 352, 357, 404 N.W.2d
120, 122 (Ct. App. 1987). We conclude
that it did.
Hicks's
trial counsel testified he was aware that the hair samples would be a major
issue in the case. Before the trial, he
knew that the root tissue of hair specimens could be subject to DNA testing at
certain out-of-state laboratories and he knew of the technology used for that
testing. He did not discuss this with
his client or with the district attorney, or petition the court to have this
test performed or do anything to pursue such testing. Hicks had never told his counsel he had committed the offenses
with which he was charged.
Hicks's
trial counsel gave these reasons for not pursuing the DNA testing of the hair
specimens:
There was a strategic reason why the additional testing
was not even discussed. In consultation
with Mr. Hicks it was our belief, that 1, no test tube of physical evidence
connected Mr. Hicks with this crime. 2,
the testimony of Karen Dorfler [sic] consistent with what Mr. Bisbing had told
me in September of 1991, that there was no way she could ever testify that --
that those hair samplings came from Mr. Hicks, and in her cross-examined
testimony, and even in consultations with Miss Dorfler [sic] at the State crime
lab she could never state as a fact that any of those hair samples in fact came
from Mr. Hicks. It was our belief that
the serological analysis of the saliva, the blood, the semen, that there would
not have been any correlation of any of that scientific testimony to Mr. Hicks. Further it was our strategy that under
904.06 -- or 406 of the federal rules that the evidence regarding the hair
samples was inadmissible as a matter of law.
We sought an objection.[1] The Court allowed it in.
In
response to further questioning about his reasons, Hicks's trial counsel stated:
One reason obviously would have been costs, one reason,
and in 20-20 hindsight may have been just a failure to further explore these
other technologies in hindsight.
Hicks's trial counsel then acknowledged that he did not
explore the costs of the tests.
We
are to "indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Strickland, 466 U.S. at
689. But even after applying that
presumption, we must conclude that the decision not to subject the hair
specimens to DNA analysis was unreasonable.
Hicks's
trial counsel stated he had a "strategic reason" for not pursuing DNA
testing on the pubic hair specimens.
But this label does not insulate his decision-making from analysis. See State v. Felton,
110 Wis.2d 485, 502, 329 N.W.2d 161, 169 (1983) (reviewing court does not
ratify a lawyer's decision simply because it is labeled "trial strategy"
by trial court). "Trial counsel's
decisions must be based upon facts and law upon which an ordinarily prudent
lawyer would have then relied." Id.
at 503, 329 N.W.2d at 169. This
standard "implies deliberateness, caution, and circumspection" and the
decision "must evince reasonableness under the circumstances." Id. at 502, 329 N.W.2d at 169.
DNA
testing on the pubic hair specimens is not inconsistent with the approach trial
counsel testified he decided on:
demonstrating the weakness of the state crime analyst's testimony on the
microscopic examination of the hair specimens.
We can see no reason that he needed to elect one or the other. He did not testify to any disadvantage or
difficulty in obtaining DNA test results on the pubic hair specimens and, based
on the record, we see none. His belief
that the pubic hair specimens should be excluded because they were collected
fifteen days after the assault is not a reasonable basis for not pursuing DNA
testing on them. Without a pretrial
ruling excluding the hairs, trial counsel had no assurance the trial court
would agree with him. A reasonable
strategy choice would have taken into account the possibility that the trial
court might admit the hairs over objection, as the court in fact did. The inconclusive results on the other
physical material--the semen, saliva, and blood--also do not provide a
reasonable explanation for not pursuing DNA testing on the pubic hair
specimens.
The
sole issue at trial was whether Hicks was the man that entered Diane F.'s
apartment and assaulted her. Hicks's
trial counsel understood that the hair samples were going to be a major issue
in the case. But he has provided no
reasoned basis for failing to pursue a testing process that he knew had the
potential to provide exculpatory evidence on this major issue. We do not intend to suggest that failure to
obtain DNA test results is always deficient performance. The Strickland analysis we use
focuses on the circumstances of each case.
We hold here only that, under the circumstances of this case, Hicks's
trial counsel's decision not to pursue DNA analysis of the hair specimens was
not "a strategic or tactical decision ... based upon rationality founded
on the facts and the law." Felton,
110 Wis.2d at 502, 329 N.W.2d at 169.
Turning
to the prejudice prong of the test, we conclude trial counsel's deficient
performance did prejudice Hicks. The
State in its closing argument told the jury the three points it was relying on:
positive identification, opportunity, and the physical evidence of the hair
specimens. The crime analyst's
conclusions regarding the hair specimens were repeated several times in closing
argument. There is no question that that
testimony was an important part of the State's case.
The
trial court reasoned that since the DNA test results excluded only one of the
hair specimens as belonging to Hicks, the others could have been his. However, in view of the uncontradicted
testimony that no black male had been in her apartment before the assault and
that a black female was there only once briefly almost two years ago, the
testimony excluding Hicks as the source of one of the pubic hairs is
significant. The State concedes that
there is no indication on the record that Cellmark personnel failed to follow
their normal protocol so as to cast doubt on the reliability of the results.[2]
If
believed by the jury, Word's testimony could cause the jury to have a
reasonable doubt that Hicks was the black male that assaulted Diane F. A jury need not reject the testimony of the
state crime lab to accept Word's testimony:
testimony that a hair specimen is "consistent" with Hicks's
hair based on microscopic examination does not necessarily contradict testimony
that Hicks is excluded as the source of that specimen when DNA analysis is
used. The trial court and the State
emphasize Diane F.'s positive identification of Hicks. But the DNA testimony, together with some
discrepancies between Hicks's physical appearance and Diane F.'s description of
the man who assaulted her, could cause the jury to conclude that Diane F. was
mistaken in her identification. Under
this scenario, the jury could reasonably conclude that the State's evidence on
"opportunity" was insufficient for a conviction.
During
the trial, the State emphasized the significance of the crime analyst's
conclusions on the pubic hairs. It now
argues that that evidence was not important to the conviction. We are not persuaded by the State's changed
assessment.
For
these reasons, under the circumstances of this case, we conclude that there is
a probability sufficient to undermine confidence in the outcome that, but for
counsel's failure to subject the hair specimens to DNA analysis, the result of
the trial would have been different. We
therefore reverse and remand for a new trial.
By the Court.—Judgment and order reversed and cause remanded with
directions.
[1] The reference by Hicks's trial counsel to
§ 904.06, Stats., and Fed. R. Evid. 406 appears to be an
error. He moved for exclusion of the
pubic hairs at trial on the ground they were collected fifteen days after the
assault, citing § 904.03, Stats.,
as a basis for the motion. Section
904.03, Stats., provides that
relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.
The motion to exclude the pubic hairs was denied.
[2] The State also concedes for purposes of
argument that the DNA analysis would be admissible at trial and that the
particular technology used by Cellmark, if properly used, is valid for
comparative DNA analysis. Since the
State submitted its brief, this court has affirmed a trial court's ruling that
test results matching a defendant's DNA with DNA on cervical and vaginal swabs
taken from the victim were admissible. State
v. Peters, 192 Wis.2d 674, ___ N.W.2d ___ (Ct. App. 1995).