COURT OF APPEALS DECISION DATED AND RELEASED April 16, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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This opinion is subject to
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Nos.94-2474-CR
94-3144-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES L. HOLLOWAY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: MICHAEL D. GUOLEE and
JOHN A. FRANKE, Judges. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. James L. Holloway appeals from a judgment of conviction,
after a jury trial, for three counts of first-degree intentional homicide while
armed, as a party to a crime, contrary to §§ 940.01(1), 939.63 and 939.05, Stats.
He also appeals from an order denying his postconviction motion for a
new trial.[1] He raises several disparate issues for our
review: (1) whether the trial court erred by denying his postconviction motion
for new trial without a Machner[2]
hearing (Holloway had challenged the effectiveness of his trial counsel); (2) whether the Wisconsin Constitution
places the burden of disproving prejudice in an ineffective assistance of
counsel claim on the State; (3) whether the trial court should have given the
jury a lesser-included offense instruction on second-degree intentional
homicide; (4) whether the trial court erred in instructing the jury on the
theory of the case, the location of the defendant following the crime, and
accomplice liability; and (5) whether the trial court erred in admitting other
acts evidence. We reject Holloway's
arguments and affirm.
I.
Background.
Holloway and his
co-defendant were convicted of killing three people in a drug house by shooting
them in the head at point-blank range. The
amended criminal complaint alleged that Holloway and Bland killed the victims
after an argument over the quality of drug deliveries and encroachment on
territory. Each defendant claimed that
the other had done the shootings and each defendant said he went along out of
fear of being killed. We address
further facts within the relevant discussions below.
II.
Analysis.
A. Ineffective
Assistance of Counsel Claim.
Holloway argues he
should have been granted a new trial because he received ineffective assistance
of trial counsel. The trial court
denied his new trial motion without a Machner hearing. Holloway argues that the trial court should
have held an evidentiary hearing before deciding his motion. We disagree.
Before a trial court
must grant an evidentiary hearing on an ineffective assistance of counsel
claim, a defendant must raise factual allegations in the motion and affidavits
that raise a question of fact for the court.
See State v. Washington, 176 Wis.2d 205, 214-15,
500 N.W.2d 331, 335-36 (Ct. App. 1993).
“A conclusory allegation of ineffective assistance of counsel,
unsupported by any factual assertions, is legally insufficient and does not
require the trial court to conduct an evidentiary hearing.” State v. Toliver, 187 Wis.2d
346, 360, 523 N.W.2d 113, 118 (Ct. App. 1994).
We review a trial court's denial of a motion for a Machner
hearing de novo. State v.
Tatum, 191 Wis.2d 547, 551, 530 N.W.2d 407, 408 (Ct. App. 1995). We must review the defendant's motion to
determine whether it contains factual allegations to support the dual-pronged
ineffective assistance of counsel standard set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984).
See State v. Saunders, 196 Wis.2d 45, 51, 538 N.W.2d 546,
549 (Ct. App. 1995). The first prong
requires that the defendant show that counsel's performance was deficient. State v. Johnson, 126 Wis.2d
8, 10, 374 N.W.2d 637, 638 (Ct. App. 1985), rev'd on other grounds, 133
Wis.2d 207, 395 N.W.2d 176 (1986). That
is, the defendant must show that counsel's conduct was “`unreasonable and
contrary to the actions of an ordinarily prudent lawyer.'” Id. at 11, 374 N.W.2d at 638
(citation omitted). The second prong
requires that the defendant show that the deficient performance was
prejudicial. Id. at 10,
374 N.W.2d at 638. To be considered
prejudicial, 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”—i.e., “a probability sufficient to undermine
confidence in the outcome.” Strickland,
466 U.S. at 694.
In his postconviction
motion, Holloway alleged ineffective representation in several respects: (1)
for failing to move to sever Holloway's case from Bland's case; (2) for failing
to object to the introduction and publication of crime scene photographs; (3)
for misstating Holloway's burden of proof during closing argument; and (4) for
failing to object to Holloway appearing in prison clothes during voir dire. Holloway did not present any affidavits with
his postconviction motion. Our de
novo review of the postconviction motion establishes that Holloway did not
raise sufficient factual allegations in his motion with respect to any
of his contentions to support both prongs of the Strickland test. See Saunders, 196
Wis.2d at 51, 538 N.W.2d at 549.
Accordingly, the trial court properly denied his motion without an
evidentiary hearing.
First, with respect to
the severance claim, Holloway does not raise sufficient factual allegations
with respect to the performance prong—that is, that his counsel was deficient
in failing to move for severance of the defendants. His motion alleges that, at trial, once it became clear that the
co-defendants' defenses were “mutually antagonistic,” the trial court called
the parties into chambers to discuss the matter. He alleges that counsel advised the court that he had discussed
the matter with Holloway and that based on his advice Holloway did not wish to
sever the trial. He does not raise any
factual allegations of what counsel's advice was. Hence, Holloway did not raise specific factual allegations of how
counsel's advice was deficient or specific factual allegations of how this
advice prejudiced him. See id.
Second, with respect to
the crime scene photographs, Holloway raises only conclusory allegations in his
motion, not specific factual allegations.
See id. He
alleged “that he was prejudiced by these photographs because the only purpose
they served was to appeal to the jury's sympathies, arouse its sense of horror
and provoke its instinct to punish.”
This allegation is “opinion-subjective” and, accordingly, is
insufficient to necessitate an evidentiary hearing. See id. (citation omitted).
Third, on the burden of
proof statements in the closing argument, Holloway alleged in his motion that
“[o]n several occasions during the closing argument, ... counsel told the jury
that he had the burden of proving Mr. Holloway innocent.” He alleged “that this misstatement by his
trial counsel severely prejudiced his case because it gave the jury the
impression that Mr. Holloway had to prove that he was innocent.” Again, without further specific factual
assertions of what happened, the allegation is insufficient to mandate a
hearing because it is merely conclusory.
“More is needed.” Id.
at 52, 538 N.W.2d at 549.
Finally, with respect to
the prison clothes issue, Holloway alleged that on the day of voir dire
his street clothes were missing and that a stranger's clothes were in their
place. He then alleged that the “trial
court instructed that Mr. Holloway either wear the clothes that were available
or else appear before the jury in prison clothes.” Holloway wore the prison clothes. Additionally, he alleged that “when Mr. Holloway's trial counsel
failed to object, Mr. Holloway was denied his fundamental right to a fair trial
....” These allegations are
insufficient to raise a factual question with respect to the prejudice prong of
the Strickland test—that is, he has not raised a question of fact
on how this alleged error undermines the confidence in the proceeding.
In sum, the trial court
properly denied Holloway's ineffective assistance of counsel motion without a
hearing. Accordingly, we will not
address the merits of Holloway's claim.
B. Ineffective
Assistance Claim Under Wisconsin Constitution.
Holloway argues that
Article I, Section 7 of the Wisconsin Constitution requires that the State bear
the burden of showing that a defendant was not prejudiced by the ineffectiveness
of counsel. He bases his argument on
Wisconsin cases predating the United States Supreme Court decision in Strickland. We need not resolve this question because
the Wisconsin Supreme Court has consistently applied the test presented in Strickland. See, e.g., State ex rel. Flores
v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994). Indeed, “[w]hether such a burden should be
adopted is properly left to our supreme court.” State v. Esser, 166 Wis.2d 897, 905, 480 N.W.2d
541, 544 (Ct. App. 1992) (discussing whether Wisconsin requires a higher Miranda
waiver burden than federal constitution).
C. Lesser-Included
Offense Instruction.
Holloway argues that the
trial court erroneously exercised its discretion by rejecting his request for a
charge of second-degree intentional homicide based upon his coercion
defense. The court concluded that the
evidence conclusively proved that Holloway conspired to commit the crimes and
that it was insufficient to prove that he withdrew from the conspiracy.
A trial court engages in
a two-step analysis in determining whether to submit a lesser-included offense
jury instruction. See State
v. Muentner, 138 Wis.2d 374, 387, 406 N.W.2d 415, 421 (1987). First, the court must determine whether the
crime is a lesser-included offense of the charged crime. Id. Next, the court must weigh whether there is a reasonable basis in
the evidence for a jury to acquit on the greater offense and to convict on the
lesser offense. Id. If both steps are satisfied, the trial court
should submit the lesser-included instruction to the jury if the defendant
requests it. See id. A trial court commits reversible error if it
refuses to submit an instruction on an issue that is supported by the
evidence. State v. Weeks,
165 Wis.2d 200, 208, 477 N.W.2d 642, 645 (Ct. App. 1991). Whether the evidence adduced at trial
requires a jury charge on the lesser-included offense instruction is a question
of law that we review de novo. Id. In addition, we must view the evidence in a
light most favorable to the defendant. State
v. Davis, 144 Wis.2d 852, 855, 425 N.W.2d 411, 412 (1988).
There is no question
that second-degree intentional homicide is a lesser-included offense of first
degree-intentional homicide. See
§ 939.66(2), Stats. (a crime
is a lesser-included offense if it is “a less serious type of criminal homicide
than the one charged). Hence, the first
prong is satisfied. With respect to the
second prong, we conclude that the evidence allows no hypothesis other than
Holloway was Bland's co‑conspirator.
As such, Holloway was not entitled to rely upon the defense that his
conduct was the result of Bland's coercion.
Section 939.46(1), Stats.;
State v. Dyleski, 154 Wis.2d 306, 310, 452 N.W.2d 794, 796 (Ct.
App. 1990).
Evidence that Holloway
and Bland conspired to rob the victims is uncontradicted in the record. The trial court submitted all three
alternatives of party-to-a-crime culpability under § 939.05, Stats.
Holloway's conduct demonstrated culpability under either a conspiracy or
an aider or abettor theory. No element
of the coercion defense finds evidentiary support in the record. Holloway points to no evidence that his
participation in the homicides was the only means of preventing death or great
bodily harm to himself or his girlfriend.
No evidence would support a finding that Bland by threat compelled
Holloway's participation or even that Bland prevented him from departing the
premises. The trial court did not err
in declining to submit a lesser-included offense charge.
D. Jury Instruction
Errors.
Holloway asserts three
errors as to jury instructions. First
he argues that the trial court's reading of uniform instruction, Wis J I— Criminal 172, the “so‑called” flight instruction, told
the jury to conclude that Holloway's conduct did indeed constitute flight. Secondly, by the trial court's reading of Wis J I—Criminal 245 (relating to evaluation of an accomplice's
testimony), Holloway argues that the jury would have to conclude that he was a
participant in the crimes. Holloway
also argues that the trial court's deviations from the pattern charges were
reversible errors.
Holloway failed to
object to these matters with the required particularity at trial; his
objections were general and did not properly preserve the issues for
appeal. See Bethards v.
State, 45 Wis.2d 606, 616, 173 N.W.2d 634, 640 (1970) (stating
objections to instructions must be made with specificity). Failure to preserve objections generally
forecloses appellate review. See
State v. Marcum, 166 Wis.2d 908, 915-16, 480 N.W.2d 545, 549
(1992). Hence, we will not address
these alleged errors.
E. Other Acts Evidence.
Holloway argues that the
trial court committed prejudicial error by allowing the State to introduce
evidence that Holloway shot at another man, two weeks prior to the
homicides. The court admitted it on the
theory of a plan or preparation and also stated that it completed the “story”
of the crime. The court also concluded
that its probative value was not substantially outweighed by the danger of
unfair prejudice. Holloway counters by
stating that the prior shooting was separate and distinct from this crime and
did not involve a person linked to the events surrounding the homicides. Further, he argues that the evidence
provides no link between the alleged shooting and the homicides.
At an in limine
hearing on the admissibility of the evidence, a witness testified that he (the
witness) sold drugs with Bland out of a drug house frequented by two of the
homicide victims. The witness stated
that two weeks before this crime, Holloway and Carlos Brown argued about drugs;
that Holloway grabbed Brown's .380 caliber handgun and shot at him, but missed;
and that Bland took hold of Holloway and prevented further discharges. The witness also testified that the next day
Holloway shot at Brown from a window.
He also testified that Holloway stole Brown's handgun and gave it to
Bland.
The admission of other
acts evidence is a question committed to the discretion of the trial
court. State v. Murphy,
188 Wis.2d 508, 517, 524 N.W.2d 924, 927 (Ct. App. 1994). We will reverse a trial court's
discretionary decision only upon an erroneous exercise of that discretion. State v. Evans, 187 Wis.2d 66,
77, 522 N.W.2d 554, 557 (Ct. App. 1994).
Other acts evidence is admissible when it establishes the context of the
crime or when necessary to present the case fully. State v. Chambers, 173 Wis.2d 237, 255-56, 496
N.W.2d 191, 198 (Ct. App. 1992).
Holloway's shooting at
Brown tends to establish his motive and intent for the homicides and, moreover,
undercuts Holloway's coercion-withdrawal defense. The trial court did not erroneously exercise its discretion to
admit this evidence and properly concluded that its significant probative value
was not substantially outweighed by unfair prejudice. See Rule
904.03, Stats. Accordingly, we affirm.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.