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COURT OF APPEALS DECISION DATED AND RELEASED July 18, 1995 |
NOTICE |
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A party may file with the
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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. 94-2763-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JERMAINE JONES,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: MICHAEL D. GUOLEE and PATRICIA D. McMAHON,
Judges. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
WEDEMEYER, P.J. Jermaine Jones appeals from a judgment of
conviction, after a jury trial, for two counts of first-degree recklessly
endangering safety, while armed, contrary to §§ 941.30(1) and 939.63, Stats.
He also appeals from an order denying his postconviction motion, which
sought a new trial based on ineffective assistance of counsel. Specifically, Jones claimed that his trial
counsel provided ineffective assistance because: (1) she did not request a bill
of particulars on two counts of intimidating a witness; (2) she did not
investigate allegations that Jones apologized to the victim and threatened the
victim; and (3) she did not pursue a suggestion by the trial court[1]
that a hearing be conducted with respect to the statements reciting the apology
and threat. Jones raises one issue for
our consideration: whether the trial
court erred in denying his postconviction motion without holding a Machner
hearing.[2] Because trial counsel is not obligated to
request a bill of particulars on counts that are dismissed, and because Jones's
postconviction motion did not allege sufficient facts to show that any
investigation would have been helpful to his defense or that a hearing would
have been helpful to his defense, we affirm.
I. BACKGROUND
On June 16, 1993, Jones,
while driving an auto, fired a gun into a second auto driven by Tacuma
Deans. An infant, Alexis Johnson, was a
passenger in Deans's auto. Jones was charged
by criminal complaint, dated June 16, 1993, with two counts of first-degree
recklessly endangering another's safety while armed. Jones was arrested on July 12, and a preliminary hearing was held
on July 26. Deans testified at the
preliminary hearing that while he was at his girlfriend's home two weeks earlier,
Jones arrived with another individual, Dimitrius Summons. Deans said that Jones apologized for
shooting at him (Deans) with the infant in the car and that Jones asked Deans
to drop the charges. Deans also
testified that Jones threatened to “shoot up” Deans's girlfriend's home if
Deans refused to drop the charges.
Deans further testified that Jones renewed his request to drop the
charges, by telephone, three or four days before the preliminary hearing.
Jones was bound over for
trial. On October 8, his first attorney
withdrew as counsel and new counsel was appointed. On November 15, the State filed an amended information
adding two counts of intimidation of a witness, contrary to § 940.43(3), Stats.
Jones pled not guilty to all four counts and a jury trial was set for
November 22, 1993. Prior to
commencement of trial, Jones's counsel filed a motion to dismiss the
intimidation counts, arguing that the new counts were not supported by evidence
presented at the preliminary examination.
The trial court agreed and dismissed the intimidation counts. The trial court determined, however, that
the State could introduce the testimony about the apology and threat during the
trial on the reckless endangerment counts.
The case was tried on
November 22-24, 1993. A jury convicted
Jones on both reckless endangerment counts.
Jones filed a motion for a new trial alleging ineffective assistance of
trial counsel, and the trial court denied the motion without holding a Machner
hearing. Jones now appeals.
II. DISCUSSION
In order to establish
ineffective assistance of counsel, a defendant must prove that counsel's
performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Before
a trial court must grant an evidentiary hearing on ineffective assistance of
counsel claims, defendants must allege sufficient facts in their motion to
raise a question of fact for the court.
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.
We further note that if the motion does not allege sufficient facts to
raise a question of fact, the trial court may still, within its discretion,
grant a Machner hearing.
Upon appeal, we review the defendant's motion
to determine whether it alleges facts sufficient to raise a question of fact
necessitating a Machner hearing.
This review is de novo.
State
v. Toliver, 187 Wis.2d 346, 360, 523 N.W.2d 113, 118 (Ct. App.
1994) (citations omitted).
A. Bill
of Particulars.
Jones's motion claimed
first that he received ineffective assistance because trial counsel failed to
obtain a bill of particulars specifying the intimidation of witness
charges. With respect to this
allegation, the trial court concluded that “it was not deficient
representation, and defendant was not prejudiced by this failure, because
counsel had no reason to demand a bill of particulars for charges which were
dismissed.” We agree. This allegation does not raise facts
sufficient to raise a question of fact necessitating an evidentiary hearing.
B. Investigation
and Mini-hearing.
Jones next claimed that
he received ineffective assistance because trial counsel should have requested
an adjournment to investigate the statements regarding an apology to and threat
against Deans. Jones also claimed that
trial counsel should have pursued the suggestion by the trial court that a
mini-hearing be conducted prior to the witnesses testifying regarding the
apology and threat. The State argues
that neither assertion alleged facts sufficient to show that an investigation
would have revealed helpful information.
The trial court determined that the record did not support the latter
allegation and that it was the trial court's decision to hold or not to hold a
mini-hearing.
Our review of Jones's
contentions demonstrates that he has failed to allege facts sufficient to raise
a question of fact which would require a hearing. We acknowledge that Jones's motion appears to allege specific
facts. The motion papers claim that
trial counsel's performance was deficient in the investigation stage because
she: (1) did not interview Tacuma Deans with respect to Deans's testimony that
Jones apologized for the shooting and threatened Deans; (2) did not interview
Deans's girlfriend, who allegedly was present during the apology and threat;
(3) did not locate the individual who allegedly accompanied Jones when Jones
apologized and threatened Deans; and (4) did not obtain phone records to prove
or disprove the phone call threat.
Jones further alleged that trial counsel: (1) could have moved for
discovery; (2) could have deposed the witnesses who testified regarding the
apology and threat; and (3) could have pursued the mini-hearing option
suggested by the trial court.
His motion did not,
however, allege specific facts to show that this further investigation would
have resulted in the discovery of further and beneficial information. “A defendant who alleges a failure to
investigate on the part of his counsel must allege with specificity what the
investigation would have revealed and how it would have altered the outcome of
the trial.” United States v.
Green, 882 F.2d 999, 1003 (5th Cir. 1989). See also Jandrt v. State, 43 Wis.2d 497,
505-06, 168 N.W.2d 602, 606 (1969); State v. Carter, 131 Wis.2d
69, 78, 389 N.W.2d 1, 4, cert. denied, 479 U.S. 989 (1986). In short, Jones alleged that his trial
counsel did not perform certain tasks, but did not allege what information
would have resulted if counsel had performed these tasks. The facts he alleged, therefore, are
analogous to the conclusory allegations in State v. Washington,
176 Wis.2d 205, 214-16, 500 N.W.2d 331, 335-36 (Ct. App. 1993). In Washington, we held that
assertions that an attorney “failed to keep [the defendant] fully apprised of
the events,”“failed to completely review all of the necessary discovery
material,” and “failed to completely and fully investigate any and all matters”
were merely conclusory allegations insufficient to require an evidentiary
hearing. Id. Jones's assertions are similar: his trial counsel failed to properly
investigate, his trial counsel failed to pursue a mini-hearing suggested by the
trial court, his attorney failed to interview witnesses, and his attorney
failed to conduct additional discovery.
Nonetheless, Jones did
not allege specific facts to show that some investigation would have turned up
advantageous information. He did not
allege what information would be discovered if trial counsel had engaged in
further investigation. He did not
allege that the trial court would have held a mini-hearing if trial counsel
requested it or that the mini-hearing would have resulted in information
propitious to the defense. We conclude
that such factual assertions are necessary to require an evidentiary
hearing. Without these additional
facts, Jones's motion is legally insufficient.
See Washington, 176 Wis.2d at 214-16, 500 N.W.2d at
335-36 (conclusory allegations alone do not entitle defendant to an evidentiary
hearing); Toliver, 187 Wis.2d at 360, 523 N.W.2d at 118 (factual allegations to support assertion
required).
Based on the foregoing,
we conclude that the trial court did not err in denying Jones's postconviction
motion without holding an evidentiary hearing.
Accordingly, we affirm the judgment and order.
By the Court.—Judgment
and order affirmed.
Recommended for
publication in the official reports.
[1] The Honorable Michael D. Guolee presided over the trial. References to the “trial court” within the text of this opinion which refer to actual trial proceedings refer to Judge Guolee. The Honorable Patricia D. McMahon presided over the postconviction motion. Therefore, any references to the “trial court” with respect to the postconviction motion refer to Judge McMahon.