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COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1995 |
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. 94-3226-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
COREY J. WISEMAN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER,
Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. Corey J. Wiseman appeals from a judgment of conviction for
one count of first-degree intentional homicide, while armed; one count of armed
robbery—threat of force; and one count of attempted armed robbery—threat of
force; all as a party to a crime. He
also appeals from an order denying his ineffective assistance of counsel postconviction
motion. Wiseman presents four issues
for our review: first, whether the
trial court erroneously instructed the jury on the “while armed” penalty
enhancer portion of the jury instruction because it did not require that the
jury find a nexus between the possession of the weapon and the underlying
offense; second, whether the trial court erred when it denied his ineffective
assistance of counsel motion without a Machner hearing;[1]
third, whether the trial court's failure to give a lesser-included offense
instruction for felony murder was plain error; and fourth, whether the trial
court erroneously exercised its discretion when it failed to dismiss the
homicide charge at the conclusion of the preliminary hearing based upon an
insufficiency of the evidence.
We conclude that
Wiseman's failure to specifically object to the “while armed” jury instruction
in the trial court waived his right to challenge it on appeal; and that the
trial court properly denied the ineffective assistance of counsel motion
without a Machner hearing.
We further conclude that the trial court did not commit “plain error”
because the evidence did not support a lesser-included jury instruction for
felony murder; and that a fair and errorless trial cured any alleged defect in
Wiseman's preliminary hearing.
Accordingly, we affirm the judgment and the order denying postconviction
relief.
On the night of November
22, 1993, Wiseman and his accomplice, Anthony Peete, approached two young males
walking down a street on Milwaukee's near north side. When Wiseman and Peete confronted the victims, Peete pulled out a
semi-automatic handgun and Wiseman pulled out a revolver. Peete told them to “break yourself,” which
meant to submit to the robbery. During
the course of the robbery, the coat, pants, and shoes of one of the victims
were taken. Peete then stated that he
had to “pop” them because they had seen his face. Wiseman left the robbery scene, but Peete shot and killed one of
the victims, while the other escaped.
The police later
arrested Wiseman and Peete and charged them both with the aforementioned
crimes. Pursuant to plea negotiations,
Peete pleaded guilty to the homicide and attempted armed robbery counts, and
the armed robbery count was dismissed.
Wiseman, however, proceeded to trial.
The jury found Wiseman guilty of all three charges. Wiseman filed motions for postconviction
relief, which the trial court denied without holding a hearing.
On appeal, Wiseman first
argues that the trial court erred in instructing the jury on the “while armed”
penalty enhancer. He argues that the
trial court failed to instruct the jury that they must find a nexus between the
predicate crime of first-degree intentional homicide, as a party to a crime,
and Wiseman's possession of the weapon.
See State v. Peete, 185 Wis.2d 4, 14‑23, 517
N.W.2d 149, 152‑56 (1994). We
need not address this issue because Wiseman never objected to the instruction
at trial. In fact, Wiseman stipulated
to the reading of the uniform jury instruction on the “while armed” penalty
enhancer. Consequently, he waived the
issue. State v. Schumacher,
144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988) (failure to object to the
proposed instructions at trial constitutes a waiver of any right to challenge
them on appeal). Wiseman asks this
court to use our discretionary power of reversal, see § 752.35, Stats., to review his claim of trial
court error. We decline to do so; the
real controversy has been fully tried.[2]
Wiseman next argues that
the trial court erred when it denied his ineffective assistance of counsel
motion without a Machner hearing. We disagree.
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.
....
Upon appeal, we review the defendants'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). “We ordinarily review factual
inferences deferentially. We do so
because a trial court can see and hear witnesses and can more accurately draw
factual inferences from testimony than can the appellate court.” State v. Tatum, 191 Wis.2d
548, 552, 530 N.W.2d 407, 408 (Ct. App. 1995) (citation omitted).
Wiseman alleged several
bases for his claim of ineffective assistance of counsel in his postconviction
motion, the most significant of which surround his trial counsel's failure to
request the lesser-included jury instruction for felony murder, and that his
trial counsel failed to object to the “while armed” penalty enhancer.[3] In support of these claims, his
postconviction motion provides nothing more than conclusory allegations, none
of which raises an issue of fact.
Accordingly, the trial court properly denied his ineffective assistance
of counsel motion without a Machner hearing. As such, we need not review the merits of
Wiseman's ineffective assistance of counsel claim on appeal because the record
is devoid of any specific factual findings on trial counsel's actions. See Strickland v. Washington,
466 U.S. 668, 698 (1984) (whether trial counsel's representation amounts to
ineffective assistance of counsel is a mixed question of law and fact); Wurtz
v. Fleischman, 97 Wis.2d 100, 107 n.3, 293 N.W.2d 155, 159 n.3 (1980)
(appellate courts cannot make findings of fact).
Wiseman next argues that
the trial court's failure to sua sponte give a lesser-included jury
instruction for felony murder was plain error, regardless of whether Wiseman
requested the instruction. We disagree.
A trial court engages in a two-step
analysis in determining whether to submit a lesser-included offense jury
instruction. First, the court must
determine whether the crime is a lesser-included offense of the charged
crime. 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. If both steps are
satisfied, the trial court should submit the lesser-included instruction to the
jury if the defendant requests it.
... 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.
In addition, we must view the evidence in a light most favorable to the
defendant.
State
v. Morgan, No. 93-2611-CR, slip op. at 41-42 (Wis. Ct. App. June
20, 1995). The parties do not dispute
that felony murder is a lesser-included offense of first-degree intentional
homicide; therefore, we turn to the second step of the analysis.
A lesser offense need
not be given in the instructions to a jury when no reasonable basis in evidence
exists to find that a crime less than first-degree intentional homicide
occurred. State v. Weeks,
165 Wis.2d 200, 209, 477 N.W.2d 642, 645 (Ct. App. 1991). The elements of first-degree intentional
homicide consist of causing the death of another human being and intent to
kill. Wis
J I—Criminal 1010. There
is no dispute that Peete's shooting of the victim caused his death. Thus, the determinate question is whether
there is any reasonable view of the evidence under which a jury could have had
doubt about the shooter's intent to kill.
Weeks, 165 Wis.2d at 209, 477 N.W.2d at 646.
Intent to kill exists if
the actor “either has a purpose to ... cause [death], or is aware that his or
her conduct is practically certain to cause that result.” Section 939.23(4), Stats. As in Weeks,
there can be no doubt that Peete harbored the proscribed intent to kill the
victim—even when viewing the evidence in the light most favorable to
Wiseman. Before shooting the victim,
Peete announced his intent to shoot him because he had seen Peete's face. Peete shot the victim in the chest, causing
a bullet to pass through the victim's lung, heart, and liver. Wiseman, as a party to the crime, was
criminally liable for the natural and probable consequence of Peete's actions. See State v. Ivy, 119
Wis.2d 591, 596-97, 350 N.W.2d 622, 625 (1984). The evidence did not support acquittal on first-degree
intentional homicide, and a finding of guilt on felony murder. Accordingly, there was no plain error in the
trial court's failure to sua sponte give an instruction on felony
murder.
Finally, Wiseman argues
that the trial court erroneously exercised its discretion when it failed to
dismiss the homicide charge at the conclusion of the preliminary hearing for
insufficiency of evidence to support the charges. We reject this claim because Wiseman's fair and errorless trial
cured any defects in the preliminary hearing.
State v. Webb, 160 Wis.2d 622, 628, 467 N.W.2d 108, 110
(1991). In sum, we reject all of
Wiseman's arguments and affirm the judgment and order.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Nothing in State
v. Peete, 185 Wis.2d 4, 517 N.W.2d 149 (1994), or State v. Avila,
___ Wis.2d ___, 532 N.W.2d 423 (1995), requires this court to review a
waived issue. In this case the issue
was fully tried, because the jury was instructed as follows:
If you are satisfied beyond a
reasonable doubt from the evidence in this case that the defendant, or a person
he was party to a crime with, caused the death of [the victim] by an act
committed with the intent to kill, you should find the defendant guilty of
first degree intentional homicide party to a crime.
....
That
substantive instruction also includes the while armed portion which includes
the following instruction you are to consider also.
And that is,
the information alleges not only that the defendant committed the crime of
first degree intentional homicide but also that he did so while possessing,
using, threatening to use a dangerous weapon.
If you find the
defendant guilty, you must answer the following question: Did the defendant
commit the crime of first degree intentional homicide while possessing, using,
threatening to use a dangerous weapon?
Before you may
answer this question yes, you must be satisfied beyond a reasonable doubt that
the defendant committed the crime while possessing, using, threatening to use a
dangerous weapon.
....
If you are
satisfied beyond a reasonable doubt that the defendant committed the crime of
first degree intentional homicide, party to a crime, while possessing, using or
threatening to use a dangerous weapon, you should answer the question yes.
If you are not
so satisfied, you must answer the question no.
As stated by the trial court in denying Wiseman's postconviction motion on this issue: “The possession or use of the weapons is so intricately intertwined and interconnected with the commission of the robbery and subsequent homicide in this case that in the absence of a nexus instruction does not warrant the same result as in Peete.” Based upon this instruction and the facts of this case, we conclude the matter was fully tried and that reversal is not required.
[3] Wiseman's remaining three claims present mere conclusory allegations which do not raise any questions of fact. Wiseman's allegation, that his counsel entered into stipulations regarding the qualifications of an expert witness, merely stated that Wiseman was not consulted on the matter and did not present how or why this resulted in any detriment to his case. Wiseman also provided no factual basis for his allegation that his counsel was ill-prepared and preoccupied during the course of the trial. Finally, Wiseman's assertion that his counsel failed to use the testimony of two people who spoke to Wiseman after the shooting did not explain how these witnesses would have done anything other than repeat previous testimony or would have added anything to the trial to accomplish a different result.