COURT OF APPEALS DECISION DATED AND RELEASED August 1, 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 volume of the Official Reports. |
No. 95-0704-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANDREW J. BILLER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed.
FINE, J. Andrew J. Biller appeals from a judgment of
conviction entered on a jury's verdict finding him guilty of failing to comply
with § 346.67(1)(a), Stats.,
which requires motorists involved in accidents with other occupied motor
vehicles to stop and exchange information.[1] Biller asserts the following claims of
trial-court error, which we have re-ordered for ease of analysis. First, he contends that his trial counsel
was ineffective, and that the trial court erred in not permitting his trial
counsel to testify in support of Biller's ineffective-assistance-of-counsel
claim. Second, he argues that the trial
court erred in receiving “other crimes” evidence under Rule 904.04(2), Stats. Finally, he claims that there was
insufficient evidence to support his conviction. We affirm.
The dispute in this case
was whether Biller, following an accident with Mark A. Mork, intentionally left
the scene without first complying with § 346.67(1)(a), Stats., or whether, as he claimed at
trial, he was unable to successfully follow Mork after he and Mork agreed to
pull off of the bridge where the accident happened. Biller admitted that he and Mork did not exchange the required
information, but contended that he would have done so if he, Biller, had not
lost Mork while attempting to follow him.
Biller's testimony was
contradicted by Thomas Turczynski, Mork's friend who was in his own car that
evening and was being followed by Mork when the accident happened. Turczynski testified that after the
accident, he, Mork and Biller agreed to meet in an area across the river
spanned by the bridge, and that as he and Mork drove to that area Biller first
followed them but “then took a left and sped off down the road” away from
them. Mork and Turczynski found a
police officer and gave him Biller's description as well as the description and
license-plate number for Biller's car.
The officer testified that he then went to Biller's home where he saw a
car that not only matched Mork's and Turczynski's description but that also had
damage that was consistent with the accident as Mork and Turczynski had
described it. The officer knocked on
Biller's door: “[S]omeone said, `Who is
it,' and I said, `It's the Milwaukee police,' and the response was, `Go away,
get fucked.” No one answered the
telephone at Biller's house when the officer called a little later.
1. Ineffective-assistance-of-counsel
claim.
Biller contends that his
trial counsel was ineffective in the following respects. First, that he did not object to
Turczynski's hearsay testimony that an unidentified bystander yelled
contemporaneously with the accident “Did you see what happened?” to which
another unidentified bystander replied to the effect that he did see what
happened and that it “didn't look good.”
Second, that on his direct-examination of Biller he elicited Biller's
1989 conviction for fleeing an officer.
He also claims that the trial court erred in not permitting him to call
his trial counsel as a witness during the post-conviction hearing on Biller's
ineffective-assistance-of-counsel claim.
Every criminal defendant
has a Sixth Amendment right to the effective assistance of counsel. Strickland v. Washington, 466
U.S 668, 686 (1984). In order to
establish violation of this fundamental right, a defendant must prove two
things: (1) that his or her lawyer's performance was deficient,
and, if so, (2) that “the deficient performance prejudiced the
defense.” Id., 466 U.S.
at 687. A lawyer's performance is not
deficient unless he or she “made errors so serious that counsel was not
functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.” Ibid. Similarly, a defendant alleging prejudice
must demonstrate that the trial lawyer's errors “were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Ibid. As recently restated, the “prejudice”
component of Strickland “focusses on the question whether
counsel's deficient performance renders the result of the trial unreliable or
the proceeding fundamentally unfair.” Lockhart
v. Fretwell, 113 S. Ct. 838, 844, 122 L.Ed.2d 180, 191 (1993).
On appeal, the standard
of review is a question of both fact and law.
Strickland, 466 U.S. at 698. The trial court's findings of fact will not be reversed unless
clearly erroneous. State v.
Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711, 714 (1985). Questions of whether counsel's actions were
deficient, and, if so, whether they prejudiced the defense, are questions of
law to be determined independently by the reviewing court. Id. at 634, 369 N.W.2d at 715.
We need not analyze
counsel's performance if it is clear that any alleged deficiencies did not
prejudice the defendant. Strickland,
466 U.S at 687; State v. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d
845, 848 (1990). Although trial counsel
whose representation of the defendant is alleged to be ineffective should
generally testify at the post-conviction hearing to explain the reasons for his
or her actions, State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d
905, 908–909 (Ct. App. 1979), that testimony—or any evidentiary hearing—is not
required unless there is a prima facie showing that the defendant is
entitled to relief. See State
v. Washington, 176 Wis.2d 205, 216, 500 N.W.2d 331, 336 (Ct. App.
1993).
Biller
has not satisfied his burden under Washington in connection with
either of his two claims. First, the
bystanders' statements testified to by Turczynski were admissible under the
confluence of Rules 908.03(1) and
908.03(2), Stats.[2]
Thus, Biller's trial counsel was not ineffective—there were no valid grounds
upon which to object. Moreover, the
out-of-court statements were wholly immaterial to the contested issue in the
case; Biller never denied that he was involved in an accident, and the
accident's severity was, similarly, not an issue. Thus, there was no prejudice.
Second, Biller's trial counsel tried to persuade the trial court that
the 1989 fleeing conviction should be kept out of evidence. The trial court ruled, however, that it was
probative in connection with Biller's theory that he did not intend to leave the
scene without first complying with § 346.67(1)(a), Stats., and that the evidence should not be excluded under Rule 904.03, Stats. In light of
the trial court's ruling, which, as we discuss below, was well within the ambit
of its discretion, the decision by Biller's trial counsel to elicit the
evidence first in an attempt to put it in as positive a light as was possible
was not deficient performance but was, rather, skillful advocacy. Furthermore, in light of the trial court's
correct ruling on the admissibility of the evidence, there was no prejudice as
a matter of law. Accordingly, the trial
court did not err in either not permitting Biller's trial counsel to testify or
in denying Biller's post-conviction motion.
2.Admissibility of
the 1989 fleeing conviction under Rule
904.04(2), Stats.
Rule
904.04(2), Stats., provides:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show that the
person acted in conformity therewith.
This subsection does not exclude the evidence when offered for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
A
decision whether to admit evidence under Rule 904.04(2)
is within the trial court's sound discretion, State v. Pharr, 115
Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983), and will not be upset on appeal if
the decision has a reasonable basis in the evidence and was made in accordance
with accepted legal principles, State v. Jenkins, 168 Wis.2d 175,
186, 483 N.W.2d 262, 265 (Ct. App. 1992), cert. denied, 113 S. Ct.
608. The proponent of the evidence has
the burden to show that it is relevant to an issue other than propensity. State v. Speer, 176 Wis.2d
1101, 1114, 501 N.W.2d 429, 433 (1993).
Once that burden has been met, the evidence is admitted unless the
opponent can show that the probative value of the other crimes evidence is
“substantially outweighed by the danger of unfair prejudice,” Rule 904.03, Stats. See Speer,
176 Wis.2d at 1114, 501 N.W.2d at 433. Rule 904.04(2), Stats., permits the admission of evidence to show, inter
alia, “intent,” “knowledge,” and “absence of mistake.” The trial court admitted the evidence on
“intent” and “absence of mistake.”
As we have seen, Biller
claimed that he would have complied with § 346.67(1)(a), Stats., had he not gotten lost. Biller's prior failure to stop his car when
directed to do so makes it more likely than not that he was aware of his
responsibilities under the traffic laws and that he would not have, as he testified,
just felt that it was “not worth my hassle, I'm just going home” rather than to
try to find Mork and Turczynski after he claims to have lost them following
their agreement to meet in a less congested area. Further, it permitted the jury to assess what they could find was
his reaction when the officer went to his home shortly after the accident. The trial court's decision that the evidence
was within Rule 904.04(2), Stats., and its determination that the
probative value of the evidence was not substantially outweighed by the danger
of unfair prejudice was well within the ambit of its discretion.
3. Sufficiency
of the evidence.
When a defendant claims
that the evidence was insufficient to support his or her conviction the scope
of our review is limited. We must
affirm if we can conclude that a jury, acting reasonably, could be convinced of
the defendant's guilt beyond a reasonable doubt. See State v. Teynor, 141 Wis.2d 187, 204,
414 N.W.2d 76, 82 (Ct. App. 1987). As
recently restated:
[A]n
appellate court may not substitute its judgment for that of the trier of fact
unless the evidence, viewed most favorably to the state and the conviction, is
so lacking in probative value and force that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of
fact could have drawn the appropriate inferences from the evidence adduced at
trial to find the requisite guilt, an appellate court may not overturn a
verdict even if it believes that the trier of fact should not have found guilt
based on the evidence before it.
State
v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-758 (1990)
(citation omitted). The jury verdict
here must be sustained. Although Biller
disputes the State's evidence, that evidence is creditable and, as can be seen
from our recitation of the salient facts in the first part of this opinion,
amply supports the verdict.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Section 346.67(1)(a),
Stats., provides:
Duty upon striking person or
attended or occupied vehicle. (1) The operator of any vehicle involved in an accident
resulting in injury to or death of any person or in damage to a vehicle which
is driven or attended by any person shall immediately stop such vehicle at the
scene of the accident or as close thereto as possible but shall then forthwith
return to and in every event shall remain at the scene of the accident until
the operator has fulfilled the following requirements:
(a) The operator shall give his or her name, address and the registration number of the vehicle he or she is driving to the person struck or to the operator or occupant of or person attending any vehicle collided with.
[2] Rule 908.03(1), Stats., provides:
Hearsay exceptions; availability
of declarant immaterial. The following are not excluded
by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression.
A statement describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or immediately thereafter.
Rule 908.03(2), Stats.,
provides:
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.