COURT OF APPEALS DECISION DATED AND RELEASED February 27, 1996 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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No. 95-1422-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMEEL A. ALI,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Milwaukee County: JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Jameel A. Ali appeals from the judgments of
conviction for second-degree sexual assault of a child and from the order
denying his motion for postconviction relief.
Ali argues that the trial court erred in responding to the jury's
question of whether the jurors could consider his conduct during jury
selection. He also argues that the
prosecutor allegedly engaged in “prejudicial misconduct” that deprived him of a
fair trial. We reject his arguments and
affirm.
I. THE
JURY INSTRUCTIONS
This was a credibility
case. The victim, T.S., was a
fourteen-year-old girl who testified that on March 9, 1994, Ali, her mother's
boyfriend, rubbed her vagina as he was waking her up for school. Ali testified that the victim made false
allegations of sexual contact against him because she disliked him and the
household rules that he tried to impose.
While deliberating, the
jury sent out a note asking, “Can we use behavior observed in Mr. Ali observed
prior to the selection and swearing in of the jury in our deliberation?” Nothing in the record or the appellate
briefs establishes what behavior was of concern or significance to the
jury. The parties and the trial court
agreed that Ali's behavior was not “evidence” from “trial.” See Wis
J I—Criminal 103 (“evidence defined”); State v. Miller,
No. 95-0129-CR (Wis. Ct. App. 1995, publication ordered Nov. 28, 1995) (“trial”
begins when jury is sworn). The State,
however, argued that because his demeanor was observable by the jury, it was
“not appropriate” to ask the jury to ignore Ali's behavior, particularly because
he testified at trial.
Initially, the trial
court answered the jury's question, “Please continue your deliberations based
on the instructions you have been given.”
Subsequently, however, the trial court instructed:
The
evidence in this case consists only of the testimony of the witnesses and the
exhibits received in evidence.
In
assessing the credibility of witnesses, you may consider what you observed in
the courtroom during these proceedings, including the conduct and demeanor of
the witness. Keep in mind, however,
that there may be many explanations for a person's demeanor or conduct at any
particular point in time.
You must read all of the instructions I have
given you together, and apply them as a whole to the evidence.
A trial court has broad
discretion in instructing the jury. State
v. Higginbotham, 110 Wis.2d 393, 403, 329 N.W.2d 250, 255 (Ct. App.
1982). If the jury instructions, when
viewed as a whole, present a correct statement of the law, the jury's verdict
will not be interfered with on appeal. State
v. Pettit, 171 Wis.2d 627, 637, 492 N.W.2d 633, 638 (Ct. App. 1992); see
also State v. Petrone, 161 Wis.2d 530, 560-561, 468 N.W.2d
676, 688 (if overall meaning of jury instructions is correct, “then any
erroneous part of the instruction is harmless and not grounds for reversal”), cert.
denied, 502 U.S. 925 (1991).
Here, the jury
instructions, read in their entirety, do not misdirect the jury. The trial court instructed the jury as to
what evidence and testimony it could consider.
The trial court also instructed the jury that the defendant's “testimony
should be weighed as the testimony of the o[th]er witnesses; considerations of
interest in the outcome, appearance, demeanor and other matters bearing upon
credibility apply to the defendant in common with the other witnesses in this
case.” We cannot conclude that the
trial court's supplemental jury instructions in response to the jury's query
misdirected the jury.
II. PROSECUTORIAL MISCONDUCT
Ali also argues that the
prosecutor engaged in prejudicial misconduct that deprived him of a fair
trial. Ali claims that the State
“sought to bolster” T.S.'s credibility by eliciting testimony from the
investigating City of Milwaukee police officer, Cynthia Lozano, that the
testimony of T.S. and the teacher to whom T.S. initially reported the sexual
contact was consistent with their initial statements to him. Ali also claims that the State improperly
elicited responses from the officer that referred to T.S. as “the victim.” Finally, Ali contends that the State
impermissibly shifted the burden of proof and discussed facts not in evidence
during its closing argument. Defense
counsel failed to object to any of these matters. On appeal, Ali argues “plain error,” “new trial in the interests
of justice” under § 752.35, Stats.,
and, alternatively, ineffective assistance of counsel.
Despite the lack of a
proper objection, this court may review alleged claims of error under
§ 901.03(4), Stats., for
“plain error.” “Plain error is error so
fundamental that a new trial or other relief must be granted.” State v. Vander Linden, 141
Wis.2d 155, 159, 414 N.W.2d 72, 73 (Ct. App. 1987). “Review under the doctrine of plain error is reserved for those
cases where there is a likelihood that the defendant has been denied a
fundamental constitutional right or the right of [a] fair trial.” Id. at 159, 414 N.W.2d
73-74. Additionally, despite the lack
of a proper objection, we may exercise our discretionary review under
§ 752.35, Stats., in the
interests of justice if “it appears from the record that the real controversy
has not been fully tried, or that it is probable that justice has for any
reason miscarried.”
We first note that Ali's
argument regarding Officer Lozano's testimonial references to T.S. as “the
victim” is not supported by citations to authority. Therefore, we decline to address this argument. See Pettit, 171 Wis.2d
at 646, 492 N.W.2d at 642.
Similarly, we also
reject Ali's argument that the State “sought to bolster” T.S.'s credibility by
eliciting testimony from the investigating officer that the testimony of T.S.
and the teacher to whom T.S. initially reported the sexual contact was
consistent with their initial statements to him. Although Ali sets forth this issue as one of many instances of
prosecutorial misconduct that “will be addressed seriatim” in the
argument section of his brief, he fails to do so. Therefore, we decline to address this issue. See Pettit, 171 Wis.2d
at 646-647, 492 N.W.2d at 642. (inadequately briefed and undeveloped arguments
need not be addressed on appeal).
The first of the alleged
prosecutorial misconduct arguments that Ali does develop relates to the
prosecutor's argument regarding T.S.'s testimony that Ali was “breathing hard”
and “licking his lips” while touching her vaginal area. The prosecutor argued that this testimony
“showed that it was done for the purposes of sexual gratification, [and] would
not have been known to a fourteen year old.”
Ali argues that “it is error for a prosecutor to make any statement
concerning facts that are neither supported by the evidence nor properly
inferable from the evidence.” In its
order denying Ali's postconviction motion, the trial court rejected Ali's
argument, stating that “the comments appear to be a reasonable, common sense
and proper closing argument.”
The prosecutor's
challenged statement was brief, made in the context of twice referring to the
fact that it was the State's burden to prove that the sexual contact was for
purposes of sexual gratification. In
context, the prosecutor's brief statement that the details T.S. related were
the kind of sexual details that would not be known to a fourteen year old was
not commentary on evidence not of record; it was allowable argument suggesting
that the jury infer T.S. was telling the truth because of the details she
described. In any event, the jury was
instructed that the arguments of counsel did not constitute evidence, and we
thus presume the jury followed the court's instructions. See State v. Patino,
177 Wis.2d 348, 379, 502 N.W.2d 601, 614 (Ct. App. 1993). Even aside from waiver due to Ali's failure
to object, this issue does not rise to the level of plain error.
Ali also argues that the
prosecutor improperly commented that T.S.'s testimony was consistent with her
investigatory and pre-trial statements to the prosecutor. The prosecutor stated:
The
next day [the day after she first reported the incident] it wasn't over. She had to come down to the DA's
office. She made a statement to
Detective Lozano. She had to go
through it again with me which again was all perfectly consistent all the way
along the line and she had to come to court, not once but twice.
(Emphasis
added.)
As the trial court
accurately noted in its postconviction decision, the evidence included general
references to T.S.'s prior statements to her friend, her teacher, her mother,
the investigating officer and the prosecutor.
The prosecutor's brief statement fails to amount to plain error.
Finally, Ali argues that
the prosecutor impermissibly shifted the burden of proof by arguing that he was
guilty because he was “lying.” In
finishing up her closing argument and pointing out that the case hinged on credibility
determinations, the prosecutor stated:
Ladies
and gentlemen, the jury instruction says that you are to give the defendant the
benefit of a reasonable doubt. And if
you can find a reason for which to not believe [T.S.], then you should find him
not guilty. But there is no reason not
to believe her. He is guilty and
that's a true and just verdict in this case.
(Emphasis
added.) On rebuttal, after once again
arguing about the evidence of the case, the prosecutor stated:
Ladies and gentlemen, reread the credibility
instruction. When you get into the ...
jury room, and it talks about the factors to consider when evaluating the
credibility of a witness, and I think when you look at all those factors
one-by-one, you will come to the conclusion that [T.S.] is the credible witness
and not the defendant. She's telling
the truth. He's lying and he's guilty.
(Emphasis
added.)
Here, the prosecutor
reiterated the correct legal standard for the burden of proof while, at the
same time, encouraging the jury to apply the credibility instruction when
evaluating the evidence from trial. As
the State correctly notes, “it would have been preferable for the prosecutor to
say that ‘based on the evidence, you should find the defendant
guilty.” (Emphasis added.) Nevertheless it is apparent from the
totality of the prosecutor's arguments that she was arguing that Ali was guilty
based on an analysis of the evidence, and not that she was asserting her
personal opinion of Ali's guilt or innocence.
See State v. Johnson, 153 Wis.2d 121, 132, 449
N.W.2d 845, 850 (1990). Thus, we reject
Ali's plain error argument on this issue as well.
Ali also seeks relief
under our discretionary power in § 752.35, Stats. He never
develops any argument relevant to the facts of this case nor does he ever
clarify under which prong of § 752.35 he seeks relief. Therefore, we decline to address this
issue. See Pettit,
171 Wis.2d at 646-647, 492 N.W.2d at 642.
Finally, as an
alternative argument, Ali contends that his trial counsel's failure to object to
the various instances of alleged prosecutorial misconduct amounted to
ineffective assistance of counsel. He
argues that we should remand this case to the trial court for a Machner
hearing. We also reject this argument.
Whether the trial court
correctly denied a defendant's motion for an evidentiary hearing for
ineffective-assistance-of-counsel claims is a question of law, which we review de
novo. State v. Toliver,
187 Wis.2d 346, 359, 523 N.W.2d 113, 118 (Ct. App. 1994). In order to receive an evidentiary hearing
on an ineffective- assistance-of-counsel claim, a defendant must raise factual
allegations to support the claim that the attorney rendered deficient
performance and that the deficient performance was prejudicial. State v. Saunders, 196 Wis.2d
45, 49-52, 538 N.W.2d 546, 548-549 (Ct. App. 1995). Here, with the possible exception of only one paragraph, Ali's
motion for postconviction relief fails to “explain how he was prejudiced by
whatever it was that his trial counsel was supposed to have done.” Id. at 51-52, 538 N.W.2d at
549. Thus, the trial court was not
required to hold an evidentiary hearing.
In one paragraph of
Ali's motion, Ali argues that he was prejudiced by his trial counsel's failure
to object to the prosecutor's statement during closing arguments that he “lied
at trial and, therefore, he must be guilty, allowing her to shift and lower the
burden of proof and eviscerate the presumption of innocence.” Without deciding whether trial counsel's
performance in this regard was deficient, we conclude that the asserted error
was not prejudicial. See State
v. Moats, 156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990) (either
performance or prejudice prong may be decided first). Prejudice has been defined as whether “counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” State v. Marty,
137 Wis.2d 352, 357, 404 N.W.2d 120, 122 (Ct. App. 1987). Here, defense counsel's failure to object to
the prosecutor's analysis of the evidence did not deprive Ali of a fair trial
in light of the totality of the evidence presented at trial and the fact that
the prosecutor's statement was made while also reiterating the correct legal
standard for the burden of proof while, at the same time, encouraging the jury
to apply the credibility instruction when evaluating the evidence from trial.
In sum we reject all of
Ali's arguments and affirm the judgments of conviction and the order denying
his motion for postconviction relief.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.