COURT OF APPEALS DECISION DATED AND RELEASED October 24, 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. 95-1466-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
FRANK NMN JOHNSON,
JR.,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JOHN A. FRANKE and TIMOTHY G. DUGAN,
Judges. Reversed and cause remanded.
FINE, J. Frank Johnson, Jr., appeals from his
misdemeanor conviction for operating an automobile while under the influence of
an intoxicant, see §§ 346.63(1)(a) and 346.65(2), Stats., and from the trial court's
denial of his motion for postconviction relief. Johnson claims that he was deprived of his right to effective
assistance of counsel. We reverse.
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, however, and, if so, whether they prejudiced the defense, are
questions of law to be determined independently by the reviewing court. Id., 124 Wis.2d at 634, 369
N.W.2d at 715.
Johnson's conviction
arose out of a one-car accident. The
issue at his trial was whether he or Robert McClain was driving Johnson's
car. Johnson admitted that he was under
the influence of an intoxicant at the time.
In her opening statement to the jury, Johnson's trial counsel told the
jury that Johnson, McClain, and Dwayne Sanders were drinking before they went
to Sanders' home, and that when, later that night, McClain wanted to go home to
Racine to check on his invalid mother, Johnson let McClain drive. Johnson's trial lawyer also told the jury
that Sanders would corroborate Johnson's story that McClain and not Johnson was
driving.[1] Sanders, however, did not come to court in
time to testify. Johnson claims that
his trial lawyer should have asked for an adjournment.
This case first came to
us on a “no-merit” brief filed by Johnson's appellate attorney. See Anders v. California,
386 U.S. 734 (1967); Rule 809.32,
Stats. We rejected counsel's no-merit brief, and remanded to the trial
court for a hearing, as required by State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908–909 (Ct. App. 1979). On remand, the trial court, the Honorable Timothy Dugan,
presiding, heard testimony from Johnson, Sanders, and Johnson's trial
counsel. Sanders' testimony
corroborated Johnson's version of the incident. Johnson's trial counsel testified that she did not seek an adjournment
of the trial to try to find Sanders, who, apparently, was at work at his
employment by the City of Milwaukee, because, based on her pre-trial
discussions with Sanders, she “felt that Mr. Sanders would not corroborate with
Mr. Johnson.” This testimony, however,
directly contradicts what Johnson's trial lawyer told the jury in her opening
statement. Nevertheless, the trial
court that conducted the Machner hearing found credible the
testimony of Johnson's trial lawyer that, as phrased by the Machner
court, Sanders “would not say that he saw Mr. McClain driving the vehicle to
the highway.” Accordingly, the Machner
court concluded that Johnson's trial lawyer “was not ineffective in [not]
seeking to have the trial adjourned because of Mr. Sanders' failure to appear,”
and that Johnson “was not prejudiced and, in fact, would not have been assisted
by the testimony of Mr. Sanders.” The Machner
court, however, was not shown the transcript of the opening statement by
Johnson's trial lawyer.
The conflict between the
Machner-hearing testimony by Johnson's trial lawyer and that
lawyer's opening statement to the jury renders her Machner-hearing
testimony on what Sanders told her in their pre-trial discussions incredible as
a matter of law. Whether Johnson was the
driver of the car at the time of accident was the only issue the jury had to
decide. Johnson testified that McClain
was driving; McClain testified that Johnson was driving. Although there was other evidence from which
the jury could conclude that Johnson was the driver, Sanders' testimony was
critical to Johnson's defense. Under
these circumstances, we cannot say that the result of the trial was reliable, see
Lockhart, 113 S. Ct. at 844, 122 L.Ed.2d at 191. Accordingly, we reverse and remand for a new
trial.
By the Court.—Judgment
and order reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Johnson's trial
lawyer told the jury:
We will also have testimony from [Dwayne] Sanders, who will testify that yes, indeed, he spent the better part of the previous evening with Rob McClain, and Frank Johnson, and several other people, and they did sleep over at his house, and that he and another friend did indeed take them to the highway with [McClain] behind the wheel.