COURT OF APPEALS DECISION DATED AND RELEASED July
18, 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
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No. 94-2883-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KELLY
SCOTT ROBERTS,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Milwaukee County: RUDOLPH T. RANDA and MAXINE A. WHITE,
Judges. Affirmed.
Before
Wedemeyer, P.J., Sullivan and Schudson, JJ.
PER
CURIAM. Kelly Scott Roberts appeals
from a judgment of conviction after a jury found him guilty of first-degree
recklessly endangering safety, contrary to § 941.30(1), Stats., and from an order denying his
postconviction motions. Roberts raises
essentially three claims of error: (1)
the evidence was insufficient to support the verdict of guilty; (2) the trial
court erroneously exercised its discretion in denying him the opportunity to
present testimony from an expert and factual witnesses at the postconviction
hearing; and (3) he was denied effective assistance of counsel.
Because
the evidence was sufficient to support the verdict, because the trial court did
not erroneously exercise its discretion in denying Roberts the opportunity to
present certain witnesses at the postconviction hearing, and lastly, because Roberts
was not denied effective assistance of counsel, we affirm.
I. BACKGROUND
The
jury convicted Roberts of first-degree recklessly endangering safety for
stabbing Gregory Reineck in the chest with a knife around 11:50 p.m. on May 8,
1991, in the vicinity of Holy Cross church, 5624 West Bluemound Road,
Milwaukee. How the actual stabbing
occurred was hotly contested at trial.
Needless to say, however, the jury accepted Reineck's version of the
incident. Events preceding and
following the incident are substantially not in dispute.
Prior
to the incident, Roberts spent most of the evening of May 8 drinking a liter of
vodka with a friend, Jayson Huth, under the Hoan Bridge on Milwaukee's
lakefront. Later, a friend, Tiffany
Doney, agreed to drive them home. Doney
took Wisconsin Avenue west. In route,
Doney, Huth, and Roberts observed the victim, Reineck, in his truck, stopped at
a traffic sign.
Reineck,
for his part, was accompanied by James McCreary, his roommate. The two lived in an upper flat at 5412 West
Bluemound Road, two doors east of where the stabbing took place. At the time, Reineck was driving his Dodge
Ram pickup truck. When Roberts and Huth
observed Reineck and McCreary stopped at the traffic sign, for some unknown
reason, they (Roberts and Huth) began shouting at them. Because the windows on Reineck's truck were
closed, he and McCreary paid no attention to the verbal remarks of Roberts and
Huth. Nevertheless, Roberts and Huth
told Doney to follow Reineck's truck.
According to Doney, they wanted to fight Reineck and his roommate.
Reineck
pulled into his driveway and parked.
Under directions from Roberts, Doney likewise stopped her vehicle. Roberts and Huth then jumped out and
commenced a verbal confrontation with Reineck and McCreary. Doney drove west to a Total gas station
located at the northeast corner of North Hawley Road and West Bluemound Road
where she waited for Roberts and Huth to join her.
In
the meantime, Reineck and McCreary told Roberts and Huth they were going to
Derry's Pub located two doors east of the duplex where they lived, and that if
they wanted to continue their arguing, they would have to do it in
Derry's. Reineck and McCreary went into
Derry's but Roberts and Huth remained outside near Reineck's apartment. Apparently frustrated by this turn of
events, Roberts then threw a rock through a window of Reineck's truck, smashing
it. Upon observing this activity
through a window of the tavern, Reineck left Derry's and chased Roberts and
Huth westbound on the north sidewalk of West Bluemound Road. What happened from that point on is highly
disputed.
According
to Reineck, he pursued Roberts and Huth to see where they were going and obtain
the license plate of their vehicle. He
chased Roberts to the open gate of a fence enclosing a parking lot located
adjacent to and west of the Holy Cross church.
Suddenly, Roberts stopped and Reineck observed him holding a knife in
his hand. Roberts lunged at Reineck and
“poked him” with the knife. Roberts
then fled into the parking lot and Reineck followed for about twenty-five to
thirty feet until he realized he had been stabbed and then stopped. Returning to the sidewalk on West Bluemound
Road, Reineck again ran west until he observed Doney's truck leaving the Total
gas station. Reineck was able to
observe the truck's license plate number.
With blood dripping from his chest, he returned to his residence and
obtained emergency aid.
Roberts,
for his part, claimed that he began running when he saw Reineck coming after
him and that he did not stop until he had traversed almost the entire church
parking lot to the fence line adjacent to the Total gas station. When he reached the fence, he turned around
and observed Reineck still coming at him.
Because of Reineck's conduct, Roberts was convinced Reineck intended to
“do something” to him, so he pulled out a knife and held it up in an attempt to
scare Reineck. He stabbed Reineck when
he realized Reineck was not just coming to talk. He insisted he had not pulled out the knife while he was on
Bluemound Road.
Roberts
essentially presented a case of self-defense.
He conceded that he provoked the entire incident, but argued that after
the initial provocation, he withdrew while Reineck acted as a “vigilante” by
taking the law into his own hands.
The
jury convicted Roberts as charged. He
then filed postconviction motions essentially requesting a new trial based upon
ineffective assistance of counsel. The
trial court denied his motions and he now appeals.
II. DISCUSSION
A. Sufficiency of the Evidence.
Roberts
first claims that the evidence presented at trial was insufficient to support
the jury's guilty verdict for first-degree recklessly endangering safety.
We
shall affirm a conviction if we can conclude that the jury, acting reasonably,
could be convinced, beyond a reasonable doubt by evidence it is entitled to
accept as true. State v. Teynor,
141 Wis.2d 187, 204, 414 N.W.2d 76, 82 (Ct. App. 1987). When there are inconsistencies between
witnesses's testimony, it is the task of the jury to determine both the
credibility of each witness and the weight to be given to the testimony. State v. Toy, 125 Wis.2d 216,
222, 371 N.W.2d 386, 389 (Ct. App. 1985).
We shall not assess the credibility nor weigh the evidence. Nor shall we substitute our judgment for
that of the jury, unless “the evidence supporting the jury's verdict conflicts
with nature or the fully established facts, or unless the testimony supporting
and essential to the verdict is inherently and patently incredible.” State v. Sharp, 180 Wis.2d
640, 659, 511 N.W.2d 316, 324 (Ct. App. 1993).
In our review, if more than one inference can be drawn from the
evidence, the inference which supports the jury's finding must be followed
unless the testimony was incredible as a matter of law. State v. Poellinger, 153
Wis.2d 493, 507, 451 N.W.2d 752, 757 (1990).
We
conclude that the jury could reasonably find Reineck's testimony, as supported
by the evidence, and in part corroborated by McCreary and Doney, more credible
and entitled to more weight than Roberts's claim of self-defense.
In
order to prove the charge of first-degree recklessly endangering safety, the
State was required to prove three elements:
(1) that Roberts endangered the safety of another human being; (2)
that he did so by criminally reckless conduct, that is, conduct creating an
unreasonable and substantial risk of death or great bodily harm; and
(3) that the circumstances of Roberts's conduct showed utter disregard for
human life. Section 941.30(1), Stats.
If
a defendant introduces evidence to establish the statutory affirmative defense
of self-defense, see § 939.48, Stats.,
the state must then also disprove that defense beyond a reasonable doubt. State v. Staples, 99 Wis.2d
364, 299 N.W.2d 270 (Ct. App. 1980). To
be successful in its prosecution, it is necessary for the state to disprove one
or more of the three elements of self-defense, plus prove the three elements of
first-degree recklessly endangering safety.[1] Perforce, the nature of these two statutory
concepts creates a condition of mutual exclusivity.
A
review of the record reveals the following evidence presented to the jury. Reineck testified that he chased Roberts
west on the north sidewalk of West Bluemound Road when suddenly Roberts
stopped, turned, and held up a knife in his hand. Before he could move backwards, Roberts jumped at him and “poked”
him in the chest with the knife. Reineck
further testified that Roberts then turned and ran across the church parking
lot. He pursued Roberts into the lot
for about twenty-five to thirty feet when he realized he was stabbed. At that point, he turned and ran back to the
sidewalk and continued west on Bluemound for a short distance until he was able
to obtain the license number of the Doney vehicle. It was then that Reineck observed that blood was dripping from
his chest wound onto the sidewalk. He
then walked back to his residence, some 450 feet, under his own power and
obtained emergency aid. In
corroboration of this version, a police officer testified he followed the blood
drippings from the yard of Reineck's residence back west to the point where
Reineck said he stopped to observe the license plate. The officer also testified he checked the church parking lot for blood
stains, but found none.
Reineck's
companion, McCreary, testified as to his observations about Reineck's bleeding
from the chest area and his blood- stained shirt and his efforts to keep his
roommate conscious until emergency aid arrived. Reineck testified that he was treated for a puncture wound in the
chest and had to remain in the hospital for two days to ensure that no arteries
running from the heart had been damaged.
Roberts's
defense, as earlier stated, was self-defense in that he had drawn a knife only
after he had been cornered. Roberts
testified that he drew the knife out of fear that Reineck was going to attack
and injure him.
The
jury was free to accept either version of how the incident occurred. Obviously, it accepted Reineck's version as
partially corroborated by the physical facts.
We conclude that the evidence was reasonably sufficient to reject
Roberts's self-defense claim and to convince the jury, beyond a reasonable
doubt, that Roberts was guilty of first-degree recklessly endangering safety.
B. Machner Hearing Witnesses.
Roberts's
second claim of error relates to the trial court's refusal to hear testimony of
two fact witnesses and one expert in support of Roberts's ineffective
assistance claim.
Evidentiary
rulings made during a Machner[2]
hearing are within the discretion of the trial court and, as such, are subject
to the same standards of review as other evidentiary rulings. See State ex rel. Flores v.
State, 183 Wis.2d 587, 612, 516 N.W.2d 362, 370 (1994) (same standard
rules of evidence apply). An appellate
court reviews a trial court's evidentiary rulings according to the erroneous
exercise of discretion standard. See
State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501
(1983). If a trial court applies the
proper law to the established facts, we will not find a misuse of discretion if
there is any reasonable basis for the trial court's ruling. Id.
Roberts
sought to have Huth testify at the Machner hearing, but the trial
court denied the request because Huth's testimony would not impact or rebut
trial counsel's testimony in some direct way.
In essence, the trial court excluded the testimony on relevancy grounds. Huth's affidavit does not contain any
information that would be relevant to the trial court's determination on the
postconviction motion.[3] Based on the foregoing, the trial court did
not erroneously exercise its discretion in declining to hear additional
testimony from Huth.
Roberts
also attempted to present the testimony of his grandmother, Dorothy
Schumacher. The purpose of this effort
was to show his trial counsel's deficient performance in failing to pursue a
motion to suppress the knife seized from his jacket at the time of his arrest
in his grandmother's home.
Roberts
lived with his grandmother. Police
learned of his residence and went to the home to question him. Roberts was asleep at the time the police
arrived and gained entrance to the premises by the consent of Schumacher. After his arrest, police seized the knife
from his jacket. Trial counsel testified
that she considered a motion to suppress the physical evidence, but after she
conferred with Roberts and learned from him that the entry to the home was
consented to, she concluded such an effort would be fruitless.
At
the Machner hearing, Roberts presented no evidence to controvert
that he himself told his counsel his grandmother consented to the entry. It is true that Roberts's trial counsel
never interviewed his grandmother, but relying on Roberts's statement that his
grandmother had consented to the entry, counsel's decision not to bring a
motion to suppress is reasonably based, Strickland v. Washington,
466 U.S. 668, 669 (1984), and did not constitute deficient performance. Hence, the trial court's decision to refuse
to hear the grandmother's testimony was not an erroneous exercise of
discretion.
Roberts
also attempted to call another attorney as an expert witness to offer his
opinion whether trial counsel's performance in certain respects was
deficient. The trial court determined
that expert testimony on this issue was not necessary in order for it to reach
a decision.
Whether
expert testimony should be admitted or excluded in any particular case is left
to the discretion of the trial court. See
State v. Hamm, 146 Wis.2d 130, 142, 430 N.W.2d 584, 590 (Ct.
App. 1988); see also § 907.02, Stats. Expert testimony is generally admitted when
it will be helpful to the trier of fact in considering the issues. Id. The trial court, acting as the trier of fact at the Machner
hearing, determined that expert testimony would not be helpful to it in
rendering a decision. We cannot say
that this decision was an erroneous exercise of discretion.
At
the Machner hearing, the trial court heard lengthy testimony from
trial counsel. It also reviewed briefs
as to whether it should hear testimony from the expert, reviewed the trial
record, and entertained argument.
Referring to a concurring opinion in State v. Fencl, 109
Wis.2d 224, 325 N.W.2d 703 (1982), the trial court, in the instant case,
acknowledged that “it may be necessary just as in medical situations where
standards of professional conduct await for a court to gain professional or
expert testimony to assist it in evaluating the record or the facts.” See id. at 246, 325
N.W.2d at 715 (certain cases may benefit from expert testimony on ineffective
assistance claims). The trial court in
the instant case concluded, however, that the Roberts case was not one of those
situations where expert testimony would assist the fact finder in reaching a
determination.
The
reasoning employed by the trial court demonstrates a proper exercise of discretion. The issues Roberts presented in his
postconviction motions do not involve areas where “scientific, technical or
other specialized knowledge” of an expert would assist the trial court in
reaching a decision. Accordingly, we
reject Roberts's claim on this ground.
C. Ineffective Assistance.
Roberts
also claims that he did not receive effective assistance from his trial
counsel. He alleges that his trial
counsel's performance was ineffective because: (1) she failed to properly
interview a potential witness, Jayson Huth, and failed to call Huth as a
witness; (2) she failed to move to suppress the knife, which was
discovered without a warrant; (3) she failed to properly modify the
standard self-defense instruction to reflect the facts of this case; (4) she
failed to request a bridging instruction; (5) she failed to object to the
testimony of a police officer who characterized the knife as an illegal knife;
(6) she failed to introduce into evidence the victim's medical records; and (7)
her performance was ineffective because of her excessive case load. We review each contention seriatim.
The
United States Supreme Court set out the two-part test for ineffective
assistance of counsel under the Sixth Amendment in Strickland. The first prong of Strickland
requires that the defendant show that counsel's performance was deficient. Id., 466 U.S. at 687. This demonstration must be accomplished
against the “strong presumption that counsel acted reasonably within
professional norms.” State v.
Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). The second Strickland prong
requires that the defendant show that counsel's errors were serious enough to
render the resulting conviction unreliable.
Strickland, 466 U.S. at 687. In reviewing the trial court's decision, we accept its findings
of fact, its “‘underlying findings of what happened,’” unless they are clearly
erroneous, while reviewing “the ultimate determination of whether counsel's
performance was deficient and prejudicial” de novo. Johnson, 153 Wis.2d at 127-28,
449 N.W.2d at 848 (citation omitted).
1. Jayson
Huth.
Roberts
first claims that he received ineffective assistance because his trial counsel
failed to properly investigate the potential testimony of Jayson Huth, and
failed to call him (Huth) as a witness at trial. Roberts claims it was deficient performance to not call Huth as a
witness because Huth could have corroborated Roberts's version of events.
Trial
counsel did not call Huth as a defense witness, although she subpoenaed him. By the time of trial, however, counsel had
acquired the contents of a statement Huth had given to the police implicating
Roberts; her own investigator had interviewed him twice; and additionally, she
talked to him twice during the trial.
She knew that Huth had been drinking heavily the night of the incident;
that he had not seen what actually happened because he was in such a hurry to
get to Doney's vehicle and that he admitted his alcoholic consumption may have
impaired his memory and powers of observation.
Thus, Huth was ripe for cross-examination.
Trial
counsel did not state precisely why she chose not to use Huth as a witness, but
it is not unreasonable to conclude that, given the vulnerability to
cross-examination of any testimony he might offer, trial counsel strategically
decided not to use Huth. Such a
tactical decision would certainly comport with the reasonable reaction of any
trial counsel and would not be fatal. State
v. Vennemann, 180 Wis.2d 81, 97, 508 N.W.2d 404, 411 (1993) (a wide range
of professionally competent assistance is acceptable). Huth's indication that he had not seen the
confrontation, together with the admitted fact that Huth and Roberts were
intoxicated, may lead a reasonable attorney to forego calling Huth as a witness. Why put a witness on for the defense who can
confirm that the defendant was drunk, that the defendant provoked the victim,
and that the defendant damaged the victim's car? It was reasonable strategy to forego calling Huth as a witness.
2. Motion
to Suppress.
Roberts
next claims that he received ineffective assistance because his trial counsel
failed to move to suppress the knife that the police discovered after coming to
Roberts's grandmother's home. Trial
counsel testified that she considered a motion to suppress, but Roberts told
her that his grandmother consented to the officers entering the home. Accordingly, she concluded that a motion to
suppress would not be successful.
At
the Machner hearing, appellate counsel submitted an affidavit
from Roberts's grandmother swearing that she did not give consent to the
officers. We resolve this contention by
considering the prejudice prong. Strickland,
466 U.S. at 697 (performance prong need not be considered if claim can be
resolved solely on the prejudice prong).
A review of the record demonstrates that even if a motion to suppress
was brought and was successful, the outcome of the case would remain the
same. Roberts admitted that he had the
knife in his possession, alleging that he used it in self-defense. Based on these admissions, even if the knife
was suppressed, the jury would have still heard testimony regarding the
knife. Therefore, the failure to pursue
a suppression motion was not prejudicial and we reject Roberts's claim on this
ground.
3. Defective
Self-Defense Instruction.
Next,
Roberts claims his trial counsel's failure to modify the self-defense
instruction to fit the facts of his case constituted ineffective
assistance. Trial counsel requested the
standard self-defense instruction, which was given. The instruction given, provided in pertinent part:
If you find that a defendant did intentionally
cause bodily harm to Gregory Reineck, as charged in complaint, but that he did
so under such circumstances that under the law of self-defense as it has been
explained to you, such use of force was privileged, than you must find the
defendant not guilty, giving him the benefit of any reasonable doubt as to
whether his conduct was privileged under the law of self-defense. (Emphasis
added).
Roberts objects to the term intentionally,
because he was charged only with recklessness. Hence, Roberts asserts that the self-defense instruction required
the jury to find Roberts actually acted with intent in order to find that he
acted in self-defense.
The
State concedes that this instruction should have been modified, but argues that
the error was harmless. We agree with
the State. This case is analogous to State
v. Paulson, 106 Wis.2d 96, 106-08, 315 N.W.2d 350, 355-56 (1982), where
our supreme court held that the failure to modify the standard self-defense
instruction in this circumstance did not prejudice the defendant. The Paulson court noted that:
It is a well
established rule that if the jury instructions, when considered as a whole and
in their entirety, render the error harmless because the overall meaning
communicated by the instruction was a correct statement of the law, there are
no grounds for reversal based upon that error.
Id. at 108, 315 N.W.2d at 356. In
the instant case, as in Paulson, the instruction immediately
following the erroneous language correctly stated the law of self-defense. It instructed as follows:
In other words,
before you can find the defendant guilty of the offense charged, you must be
satisfied beyond a reasonable doubt f[ro]m the evidence in this case that any
use of force by him against Gregory Reineck, if such force was so used, was not
privileged under the law of self-defense as it has been defined for you.
We conclude that despite the erroneous language, the overall
correct statements of the law contained in the remainder of the jury
instructions did not affect the reliability of the verdict.
4. Bridging
Instruction.
Next,
Roberts argues his trial counsel should have requested a bridging instruction
so that the jury could have considered his self-defense assertion as a
mitigating factor to find him guilty of the lesser included offense rather than
first-degree recklessly endangering safety.
Trial counsel testified that she did not consider requesting a bridging
instruction.
A
bridging instruction was not required in this case and, therefore, not a proper
basis to find ineffective assistance. See
State v. Felton, 110 Wis.2d 485, 489, 329 N.W.2d 161, 163
(1983) (bridging instruction appropriate when “the evidence arguably permits a
finding of first or second degree murder or manslaughter”).
5. Failure
to Object to Officer's “Illegal Knife” Testimony.
Roberts
next claims that trial counsel was ineffective because she failed to object to
the following testimony:
Q:[Assistant
District Attorney]: When you said its locking bladed knife, what do
you mean by that?
A:[Police Officer]: What I mean is when the
blade is open, it will lock in place and it won't close just by trying to force
it. A separate button you have to push
in order to close the blade. And by
the standard of the city, this is considered an illegal knife because of the
length of the blade.
(Emphasis added.)
Roberts objects to the emphasized language, arguing that this is a
reference to other bad acts, which was prohibited by motion in limine
rulings. Trial counsel testified at the
Machner hearing that she did not recall this testimony and
probably just “missed it.”
We
need not address whether it was deficient to fail to object to this statement
because we conclude that this testimony was not prejudicial. The reference was isolated and brief. In addition, it is arguable that an
objection at that point may have drawn unnecessary attention to the
remark. We conclude that this one word
objectionable characterization did not affect the reliability of the verdict,
and we therefore reject Roberts's claim on this ground.
Roberts
also claims that the prosecutor's reference to the blade length in closing
argument was improper. There is no
merit to this argument. It is
undisputed that the prosecutor did not resurrect the police officer's “illegal”
comment, but merely reflected on the blade length. Under the facts of this case, there was nothing objectionable
about the prosecutor commenting on the descriptive nature of the weapon.
6. Failure
to Introduce Medical Records.
Next,
Roberts claims that trial counsel was ineffective because she failed to
introduce into evidence the victim's medical records. Trial counsel testified at the Machner hearing that
she erred in failing to submit the records, but was caught off-guard because
the prosecutor represented that he would be introducing the records.
Roberts
asserts that the medical records contained information contrary to the
testimony of the victim and should have been introduced into evidence to
challenge the victim's credibility. Our
review of Roberts's claim demonstrates that the failure to introduce the medical
documents was not prejudicial. We base
this conclusion on the fact that trial counsel effectively cross-examined the
victim using information from the medical records and on the fact that trial
counsel attacked the State's case in her closing for failing to introduce any
documentation of the alleged injury.
Based on these facts, it was not absolutely necessary for the medical
records themselves to be introduced. In
fact, their absence allowed trial counsel to attack the State's case. Therefore, we reject Roberts claim on this
ground.
7. Excessive
Case Load.
Roberts's
final claim regarding ineffective assistance is that trial counsel's excessive
case load adversely affected her performance in this case. Trial counsel testified at the Machner
hearing that she felt her preparation time was lacking because of her other
cases. The trial court, however,
determined that the record did not support this allegation, explaining that:
The record discloses that the trial counsel spent a day
and an evening preparing immediately before the first day of trial and talked
with the defendant about his case at other times, reviewed all the case file
records and made notes. Additionally,
trial counsel indicated that she was prepared to go to trial on two earlier dates. Those earlier dates preceded the actual
trial date by almost ten months. And
finally, trial counsel also made use of an investigator to assist her with the
preparation of this case.
These findings are supported by the record and,
therefore, are not clearly erroneous.
Although trial counsel could have undoubtedly spent additional time in
preparation, we conclude, her preparation in defense of this case did not
constitute ineffective assistance.
Accordingly, we reject Robert's claim that trial counsel's excessive
case load resulted in him receiving ineffective assistance.
III. CONCLUSION
Based
on the foregoing, we reject each of Roberts's contentions and affirm the
judgment of conviction and order denying his postconviction motions.[4]
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] The absolute privilege of perfect
self-defense applies where a defendant shows all three of the following
elements: (1) the defendant reasonably
believed that he was preventing or terminating an unlawful interference with
his person; (2) the defendant reasonably believed that force or threat thereof
was necessary to prevent or terminate the interference; and (3) the defendant
reasonably believed that the actual amount of force used was necessary to
prevent or terminate the interference.
State v. Camacho,
176 Wis.2d 860, 869, 501 N.W.2d 380, 383 (1993); see also § 939.48, Stats.
[3] In his affidavit, Huth confirms that he was
contacted by an investigator working with the defense, who questioned him. Huth's affidavit also confirms that
Roberts's trial counsel spoke with him on a few occasions in the
courthouse. He also attests that “it is
my opinion that Kelly could not have confronted Mr. Reineck at the entrance of
the fenced-in parking lot as Mr. Reineck claims.” This information does not rebut Roberts's trial counsel's
testimony. Hence, the affidavit was
irrelevant to the trial court's determination under the facts and circumstances
of this case.
[4] Roberts also alleges that he is entitled to a
new trial on the basis of newly discovered evidence or pursuant to
§ 752.35, Stats., in the
interests of justice. We summarily
reject both contentions.
Roberts
claims that the testimony of Huth and Roberts's grandmother constitutes newly
discovered evidence and therefore he is entitled to a new trial. We disagree.
Evidence
is considered “newly discovered” if: (1) it comes to the moving party's notice
after trial; (2) the moving party's failure to discover the evidence earlier
did not arise from lack of diligence in seeking to discover it; (3) the
evidence is material and not cumulative; and (4) the new evidence would
probably change the result. Section
805.15(3), Stats. Neither witness's proffered testimony would
probably have changed the result; therefore, we reject Roberts's contention.
As
discussed above, Roberts's grandmother's testimony would not have influenced
the outcome even if it was the basis of a successful motion to suppress. Likewise, Huth's proffered testimony would
not have probably changed the result.
The critical testimony proffered by Huth's affidavit is: “Although I
could not see [Roberts] at all times because I was running in front of him, it
is my opinion that [Roberts] could not have confronted Mr. Reineck at the
entrance of the fenced-in parking lot as Mr. Reineck claims.” Even if the trial court would have allowed
this testimony—which was not a personal factual observation, but an opinion—the
admission probably would not have changed the result.
As
noted above, Huth was admittedly intoxicated; he had given statements closer to
the time of the incident stating that he did not see anything; and the physical
evidence supported Reineck's version of events. Accordingly, we reject Roberts's claim on this ground.
Finally, Roberts asserts
that we should reverse the conviction and grant a new trial “in the interests
of justice.” Based on our analysis
throughout this opinion, we see nothing in the record before us to invoke
§ 752.35, Stats. (new trial
may be granted if real controversy was not fully tried or if it is probable that
justice has miscarried).