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COURT OF APPEALS DECISION DATED AND RELEASED February 27, 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. 94-2601-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID M. BEASLEY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER CURIAM. David M. Beasley appeals from a judgment of
conviction, after a jury trial, for delivery of a controlled substance—cocaine,
contrary to §§ 161.16(2)(b)(1) and 161.41(1)(c)(1), Stats.
Beasley presents two issues for review.
First, he argues that he received ineffective assistance of counsel when
his trial counsel allegedly failed to:
(1) properly investigate and prepare for trial; (2) file motions
alleging an illegal arrest and seeking to suppress evidence arising out of an
illegal arrest; (3) challenge the reliability of the lineup that occurred at
the time of the defendant's arrest; and (4) make appropriate objections to the
in-court identification of the defendant.
Second, he argues that the trial court erred by failing to grant him a
new trial in the interest of justice.
We reject Beasley's arguments and, accordingly, we affirm.
I.
Background.
On January 12, 1990,
City of Milwaukee Police Officer Gregory Jackson went to an upper flat located
on Milwaukee's near north side to make an undercover “controlled buy” of
cocaine. Jackson went to the front door
where a man opened the door. Jackson
gave the man $20 and the man then went upstairs and returned a couple of
minutes later with a piece of white paper filled with a white powdery
substance. The substance later tested
positive as cocaine base. Jackson later
described the individual who gave him the cocaine as a black male between 22
and 26 years of age, about 5'8”, 150 pounds with some facial hair, a short
“afro” or medium-length hair, and wearing a gray three-quarter-length coat.
Six days later, Jackson
returned to the same address to execute a search warrant. Jackson stayed in an undercover van while
other officers entered the premises.
Police then detained Beasley outside the home as he walked toward the
porch. The police conducted a pat-down
search and then took Beasley and a few other individuals detained outside the
building into the residence. Beasley
was arrested. Officer Jackson entered
the residence. On seeing Beasley inside
with the other individuals the police had detained, Officer Jackson stated that
Beasley was the man from whom he purchased cocaine six days earlier. The State charged Beasley with delivery of a
controlled substance—cocaine, and he received a jury trial. During the trial, Officer Jackson made an in-court identification of Jackson as the
individual who sold the cocaine. The jury convicted Beasley and he filed
postconviction motions seeking a new trial based on, inter alia, his
contention that he received ineffective assistance of counsel prior to and
during his trial. After a Machner[1]
hearing, the trial court denied Beasley's motion for a new trial, concluding
that Beasley's trial counsel was not ineffective.
II.
Ineffective Assistance of Counsel Claim.
Ineffective assistance
of counsel claims are reviewed under the two-pronged test set out by the United
States Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984). State v. Pitsch,
124 Wis.2d 628, 633, 369 N.W.2d 711, 714 (1985). The first prong requires that the defendant show that counsel's
performance was deficient; that is, that counsel made such serious errors that
counsel is no longer functioning as the “counsel” guaranteed to the defendant
by the Sixth Amendment. Strickland,
466 U.S. at 687. The second prong
requires that the defendant show that the deficient performance prejudiced his
or her defense. Id. To show prejudice, “[t]he 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
694. “`[N]ot every error that
conceivably could have influenced the outcome undermines the reliability of the
result of the proceedings.'” Pitsch,
124 Wis.2d at 641, 369 N.W.2d at 718 (citations omitted).
Whether Beasley received
ineffective assistance of counsel presents a mixed question of fact and
law. Strickland, 466 U.S.
at 698. We will only reverse a trial
court's findings of fact if they are “clearly erroneous.” Pitsch, 124 Wis.2d at 634, 369
N.W.2d at 714. Questions of whether
counsel's performance was deficient and whether it prejudiced the defendant's
defense are questions of law that we review de novo. State v. Moffett, 147 Wis.2d
343, 353, 433 N.W.2d 572, 575 (1989).
Lastly, if the defendant fails to adequately show one prong of the Strickland
test, we need not address the second. Strickland,
466 U.S. at 697.
Upon appeal, Beasley
raises four bases for his ineffective assistance of counsel claim. We address each separately.
A. Investigation and
Preparation for Trial.
First, he argues that he
received ineffective assistance of counsel by his trial counsel's alleged
failure to properly investigate and prepare for trial. Ostensibly, Beasley is
arguing that his trial counsel was deficient for not discovering earlier the
specific situation surrounding Beasley's arrest. He argues that if counsel would have properly investigated the
arrest, counsel would have filed a motion for suppression of Officer Jackson's
identification of Beasley as it was evidentiary poisonous fruit of his
allegedly illegal arrest.
The trial court
concluded that counsel's performance was not deficient. After reviewing the evidence presented at
the Machner hearing, we agree with the trial court. It is clear from counsel's testimony that
prior to trial he did not believe that there was a basis for challenging the
arrest. Counsel interviewed Beasley
about his arrest. He discussed the
arrest with Beasley, and Beasley told him that he was arrested outside the
house two weeks after the delivery of cocaine.
He stated that police came to the apartment because his friend had his
“head split open” with an iron pole.
Beasley also said that the police recognized him as being wanted in
connection with a crime, arrested him across the street and then took him
upstairs into the apartment. Counsel
believed Beasley's account of what happened.
“Counsel's actions are usually based ... on information supplied by the
defendant.” Strickland,
466 U.S. at 691. Further, “`the
reasonableness of counsel's actions may be determined or substantially
influenced by the defendant's own statements or actions.'” Pitsch, 124 Wis.2d at 637
(citations omitted). Counsel's failure
to pursue certain investigations may not be challenged later as unreasonable
when the defendant has given counsel the reason to believe that pursuing those
investigations would be fruitless. Strickland,
466 U.S. at 691. Counsel stated that he
did not challenge the arrest because, after reviewing the police reports, he noted
that the same officer made the arrest and the purchase of cocaine. Once counsel discovered during the trial
that Beasley was seized outside the house, brought inside, and then
arrested, he planned to bring a motion before the trial court challenging the
arrest. The trial court heard his
motions but denied the motion challenging the arrest, along with his second
motion moving for a mistrial.
Therefore, counsel acted
reasonably after discovering that Beasley's original account of what occurred
was erroneous. Counsel properly
conducted Beasley's defense based on the statements and information Beasley had
given him. Strickland,
466 U.S. at 691. Accordingly, counsel
did not provide deficient performance.
B. Alleged Illegal
Arrest Evidence.
Beasley next argues that
Counsel was deficient for not seeking to suppress evidence obtained after the
allegedly improper arrest. As we
discussed above, however, counsel's actions at the time of trial were based on
erroneous information given to him by Beasley.
Once counsel discovered the erroneous arrest, he both challenged the
arrest and moved for a mistrial.
Counsel's actions were not deficient based upon the information given to
him by Beasley.
C. Lineup Objections.
Beasley next argues that
counsel's performance was deficient because he did not object to Officer
Jackson's on-the-scene identification of Beasley as the person from whom he
purchased cocaine two weeks earlier. Beasley mischaracterizes this
identification. Beasley was not placed
in a lineup for purposes of identification.
He and the other individuals at the house were placed against the wall
of the house, primarily for the protection of the arresting officers. Officer Jackson entered the house and then
immediately recognized Beasley as the drug-seller from two weeks earlier. This was not a lineup “deliberately
contrived by the police for purposes of obtaining an eyewitness identification
of the defendant.” State v.
Marshall, 92 Wis.2d 101, 117, 284 N.W.2d 592, 599 (1979). Beasley has failed to show how his counsel
was deficient by not objecting to this fortuitous identification.
D.
In-court Identification Objections.
Finally, counsel did not
perform deficiently by failing to object to Jackson's in‑court
identification of Beasley. An in-court
identification will be admissible if the court deems it was based on an
independent recollection. United
States v. Crews, 445 U.S. 463, 473 (1980); State v. Walker,
154 Wis.2d 158, 188, 453 N.W.2d 127, 140 (1990). Jackson's in-court identification of Beasley was based on an
independent recollection of their initial meeting at the original drug
purchase; therefore, the in-court identification was reliable. Walker, 154 Wis.2d at 188, 453
N.W.2d at 140. Accordingly, there was
no reason for Beasley's counsel to object to the in-court identification.
In sum, after applying
the two-pronged Strickland test, we agree with the trial court's
determination that counsel acted reasonably and that his preparation of
Beasley's defense was not deficient.
Because we conclude that counsel's performance was not deficient, we
need not address the prejudice prong of the test. Strickland, 466 U.S. at 697.
III. New Trial
Claim.
Beasley's final argument
is that he is entitled to a new trial in the interests of justice. His argument is nothing more than a rehash
of the issues already discussed. “We
have found each of these arguments to be without substance. Adding them together adds nothing. Zero plus zero equals zero.” Mentek v. State, 71 Wis.2d
799, 809, 238 N.W.2d 752, 758 (1976).
Thus, “[b]ecause we are not convinced that there has been a probable
miscarriage of justice, that the defendant should not have been found guilty or
that a new trial would lead to a different result,” we affirm. State v. Johnson, 135 Wis.2d
453, 467, 400 N.W.2d 502, 508 (Ct. App. 1986).
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.