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COURT OF APPEALS DECISION DATED AND RELEASED December 27, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1582-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID L. WIENER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Brown County: DONALD J. HANAWAY, Judge.
Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. David Wiener appeals a judgment convicting him of
second-degree reckless homicide and an order denying his postconviction
motion. He argues that his trial
counsel was ineffective because he failed to present evidence that the victim,
Wiener's brother Tim, had persistent suicidal tendencies and a "nothing to
lose, I'll never live past thirty" life philosophy. Wiener argues that this evidence would have
supported his theory of self-defense because it showed a basis for his
heightened fear of his brother. We
reject this argument and affirm the judgment and order.
Tim Wiener called David
on the day of his death and was upset because David had refused to help him
park his car near the football stadium the day before. After a brief conversation, David hung up on
Tim. Tim called back and told David he
was going to come over and beat him up.
David contends that the threat included a death threat, although other
witnesses to both sides of the conversation did not get the impression that
extreme violence was imminent. After
David hung up the second time, Tim called again to say that he was on his way
over. David told Tim that he had a gun
and would call the police. After that
conversation, David called his mother and told her Tim was causing
trouble. She told him they should
settle it themselves. David then tried
calling his brother back to tell him not to come over, but got no answer. He then locked the doors, instructed his
wife on what to do if Tim came over, removed a pistol from his safe and made
sure it was loaded. When Tim arrived,
he broke down the door and entered the house.
David testified that he believed his brother was going to beat him to
death. Tim had twice before battered
David, resulting in black eyes, bloody noses, loose teeth and a fat lip. David testified that he showed his brother
that he had a gun and Tim responded "you ain't got the balls." Tim then clenched his fist and rushed up the
stairs at David. David shot once, but
was uncertain whether the bullet hit Tim.
After Tim went backwards down the stairs, he again charged David. David then fired three or more shots into
Tim's torso, killing him. David then
called the police and told the dispatcher he had shot his brother after he
"started to come at me ...."
He also stated "he was beating me up before and I wasn't going to
take it." The jury rejected
David's claim of self-defense and found him guilty of second-degree reckless
homicide.
To establish ineffective
assistance of trial counsel, David must show that his trial attorney's
performance was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington,
466 U.S. 668, 687 (1984).
Professionally competent assistance of counsel encompasses a wide range
of behaviors and a fair assessment of the attorney's performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate
the conduct from counsel's perspective at the time. Id. at 689.
Strategic choices made by counsel after a thorough investigation of the
law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91. To establish prejudice, Wiener must show
that but for his counsel's errors, there is a reasonable probability the result
would have been different. A reasonable
probability is one that undermines confidence in the outcome. Id. at 694.
Counsel's failure to
present evidence on Tim's suicidal tendencies and a suicide pact, as well as
his generally reckless behavior, did not constitute ineffective assistance of
counsel. While this information was marginally
relevant to establish the reasonableness of David's belief that he had to use
deadly force, the evidence was not so persuasive that failure to present it
constitutes ineffective assistance. The
proffered evidence would have showed that Tim had expressed a belief that he
would not live to be thirty, so he intended to live in the "fast
lane." He had told a co-worker
that he did not care if he contracted AIDS and would do whatever he could to
"take as many people as [he] can down with [him]." Another witness would have testified that in
1991, Tim told him he had contracted herpes and Tim was depressed. The two of them agreed that if they made it
to thirty years old, and still hadn't accomplished the things they wanted to
accomplish, they would die together.[1] A third witness would have testified that
Tim mentioned suicide at least six times and intended to use his car as the
method of suicide.
None of this testimony
would have established that it was reasonable for David to use lethal force
against Tim. The State successfully
argued that Tim had previously battered David and other family members without
inflicting great bodily harm or causing death, that the threat of imminent
death or great bodily harm was not corroborated by other witnesses in a
position to hear the conversations and that the circumstances did not justify
the use of deadly force. In his
seven-page statement to the police on the day of the shooting, David did not
mention Tim's talk of suicide or his life philosophy. The proffered evidence had minimal value in establishing a
justification for David's decision to use lethal force against Tim. Wiener's trial counsel was not ineffective
for deciding not to present this evidence.[2]
In addition, Wiener has
not established that he was prejudiced by his counsel's decision not to present
this evidence. Defense counsel
successfully introduced substantial evidence regarding prior threats and
violent acts by Tim. The omitted
evidence, consisting of words not deeds, sometimes made years earlier and
describing a means of suicide dissimilar from the present situation, is not as
persuasive as the evidence the jury heard regarding Tim's previous acts of
violence and explosive temper. The
defects in the defense related to David's failure to prove that he reasonably
believed there was imminent danger of great bodily harm or death and that he
used excessive force in defending himself.
The jury's rejection of this defense in light of the evidence presented
regarding Tim's previous behavior shows that additional evidence regarding his
statements and lifestyle would not have been persuasive on the issues relating
to self-defense.
Finally, Wiener requests
a new trial in the interest of justice.
We conclude that the issue of self defense was fully and fairly tried,
justice has not miscarried and there was no reason to believe retrial would
result in a different verdict. See
§ 752.35, Stats.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.