COURT OF APPEALS DECISION DATED AND RELEASED February 28, 1996 |
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
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No. 95-0828-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
EARL GORDON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Racine County: DENNIS J. FLYNN, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. Earl Gordon appeals from
an order denying his motion for postconviction relief. He alleges ineffective assistance of counsel
on the grounds that his attorney failed to object to testimony offered at
trial, despite an agreement with the State prohibiting such testimony. We affirm, finding that even if Gordon’s
attorney was deficient in her performance, that deficiency did not cause
prejudice sufficient to warrant a reversal.
On March 17, 1993, an
assailant robbed the North Main Express, a gas station and quick mart in
Racine. Gordon was stopped by police
after a citizen observed him acting suspiciously, matched his description with
that of the robber being broadcast over police scanners and pointed him out to
police. Both the store clerk and a
customer, who was approaching the store as the robber fled, identified Gordon
as the robber. Another citizen, who
knew Gordon from previous contacts, identified him as the man who stopped at
her home near the robbery site and asked to use the telephone. All four witnesses described a blue denim
coat which was either worn or carried by the subject. When stopped, Gordon was carrying a large amount of cash in his
pockets.
Gordon was charged with
armed robbery in violation of § 943.32(1)(b), Stats. Before trial, his attorney made an agreement
with the State concerning statements made by Gordon to an investigator, Michael
Erdmann. The trial court, in
summarizing the agreement, noted that the State would not use any statements
made by Gordon to Erdmann in its case in chief and that these statements
generally indicated where Gordon got the money he had when arrested and that he
had not been involved in the robbery.
If the statements were to be used, there would be notification among the
attorneys and a hearing outside the jury’s presence.
During Gordon’s case in
chief, the defense attempted to cast doubt on the diligence of police in
investigating the case. Police officers
were called to the stand and questioned about matters such as the quantity and
quality of fingerprinting done at the scene. As part of this strategy, Erdmann was called to the stand and
Gordon’s attorney questioned him regarding a discrepancy between the amount of
cash reported missing by North Main Express and the amount recovered from
Gordon. During this phase of
questioning, the following exchange occurred between Gordon’s attorney and
Erdmann:
Q: You
weren’t curious about what happened to the differing amount of money?
A: He
had stated that he gave some of it away to people that he owed money to.
Gordon’s
attorney made no objection to this answer.
On cross-examination, the State asked Erdmann:
Q: Now,
you said there’s several, in your mind as a police officer, logical
explanations for why the defendant doesn’t have the exact amount on him?
A: Yes.
Q: And
in this particular case he stated that he had given some away?
A: Yes, he did.
Again,
Gordon’s attorney did not object. On
redirect examination, Gordon’s attorney probed Erdmann further regarding the
money:
Q: Barring
any testimony from any witness in this Court that they saw anything happen to
any of the money, you don’t have any knowledge as to where that money went,
correct, specific knowledge?
A: Mr.
Gordon told me he gave some of it away.
Gordon’s
attorney objected at this point.
Outside the jury’s presence, the court instructed the witness not to
discuss statements made by the defendant in response to any further questions. The court ruled that the answers already
given would not be struck and that the State had not violated its agreement
with Gordon because the information came out in the defense’s case in chief.
Gordon contends that he
suffered ineffective assistance of counsel in that his attorney failed to
object to the testimony of Erdmann concerning Gordon’s statements. To prove ineffective assistance, a defendant
must satisfy the two-part test established by Strickland v. Washington,
466 U.S. 668 (1984). Gordon must show
both that his attorney’s performance was deficient and that that deficiency
prejudiced his defense. Id.
at 687. Although the performance and
prejudice questions present mixed questions of law and fact, and findings of
fact will not be overturned unless clearly erroneous, the ultimate
determinations of whether counsel’s performance was deficient and prejudicial
are questions of law which we review independently. State v. Giebel, ___ Wis.2d ___, ___, 541 N.W.2d
815, 819-20 (Ct. App. 1995).
Because both elements of
the test must be satisfied for an ineffective assistance claim to succeed, an
appellate court may address the two components in any order it chooses. Strickland, 466 U.S. at
697. For that reason, we will assume arguendo
that Gordon’s attorney was deficient in questioning Erdmann about the differing
amounts of money and will proceed directly to the question of whether this
deficiency prejudiced the defense.[1] We hold that it did not.
An error by counsel,
even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the
judgment. Id. at
691. The purpose of the Sixth Amendment
guarantee of counsel is to ensure that a defendant has the assistance necessary
to justify reliance on the outcome of the proceeding. Id. at 691-92.
Not every error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding. Id. at 693. Rather, the essence of an ineffective
assistance claim is that the counsel’s unprofessional errors so upset the
adversarial balance between defense and prosecution that the trial was rendered
unfair and the verdict rendered suspect.
See Nix v. Whiteside, 475 U.S. 157, 175 (1986).
Gordon must show that as
a result of his attorney’s error, the outcome of the proceeding is
suspect. The suspicion must be
sufficient to undermine our confidence in the outcome. Strickland, 466 U.S. at
694. A court hearing an ineffective
assistance claim must consider the totality of the evidence before the judge or
jury. Id. at 695. Having examined the record in this case,
our confidence in the outcome remains intact, despite Gordon’s counsel’s error.
Gordon was identified as
the robber by two witnesses: the store
clerk and a customer who saw him shortly after he exited the store. The clerk had ample time to observe Gordon’s
face because he asked her about beer and brought items to the counter for
purchase. Two additional witnesses, one
of whom knew Gordon personally, placed Gordon near the scene of the crime,
wearing or carrying clothing matching that worn by the robber, and acting
suspiciously. The testimony of the four
witnesses is consistent and convincing.
It identifies Gordon and traces
his movements from the store to the yard of one citizen witness, on to the home
of another witness, and eventually to the spot where he was stopped by
police. This evidence has been fairly
characterized by the State as overwhelming, and for that reason Gordon’s
counsel’s error cannot be said to have prejudiced the outcome.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.