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COURT OF APPEALS DECISION DATED AND RELEASED May 7, 1996 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1672-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RUSSELL STOKES,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JOHN J. DiMOTTO
and DIANE S. SYKES, Judges. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER
CURIAM. Russell Stokes appeals a judgment of conviction for
second-degree sexual assault and from an order denying his motion for
postconviction relief. He argues that
trial counsel was ineffective for failing to present testimony of two alibi
witnesses. He also seeks a new trial in
the interest of justice. We conclude
that the trial court's factual findings support its conclusion that trial
counsel’s performance was not deficient and a new trial is not necessary. We therefore affirm both the judgment and
the order.
Stokes was prosecuted
for sexually assaulting and robbing Carmen G. on the night of April 27, 1992,
in Milwaukee.[1] To support its case, the State relied almost
entirely on the testimony of the victim and her identification of Stokes
through a photo array and a lineup.
Stokes attempted to
present an alibi defense to establish that he was in Marion, Arkansas, at the
time of the crime. An uncle and three
of Stokes’s siblings, including a sister who lived at the house where the assault
occurred, testified at trial. Stokes’s
defense rested primarily on the assumption that because Stokes would regularly
visit them when he was in Milwaukee, and because he had not done so on April
27, 1992, the date of the crime—he could not have been in Milwaukee at the
time. Stokes’s mother testified that
she lived across the street from Stokes in Marion and that she saw him every
day in April of 1992. Stokes contends
that two additional alibi witnesses from Marion—Elijah Knighten and A.D.
Clark—should have been presented to the jury.
At Stokes's Machner
hearing, Knighten testified that he lived across the street from Stokes in
Marion, that he worked every day except Sunday, and that he saw Stokes every
morning when he (Knighten) went to work and every evening when he returned home
from work. Further, Knighten testified
at the hearing that he came to Milwaukee to testify but that Stokes’s attorney
refused to call him at trial. Knighten
also testified that he attempted to talk with Stoke’s attorney but was
unsuccessful, stating:
He didn’t want to listen. He said he didn’t have no use for us.
We couldn’t come in there, so there
wasn’t nothin’ else for us to do. We
sit out there and wait.
Clark also testified
that he lived in Marion in April 1992, that he saw Stokes every day that month,
and that he and Stokes went to the dog track in West Memphis, Arkansas, on the
evening of April 27, from approximately 6:30 p.m. to 11:00 p.m. Like Knighten, Clark testified that he came
to Milwaukee intending to testify for Stokes, but that Stokes’s attorney
prevented him from doing so.
Mellie Stokes, Stokes’s
mother, also testified at the postconviction hearing. She stated that she brought Knighten and Clark with her from
Marion because both defense counsel and defense counsel’s investigator
instructed her to. She testified that
she had told the investigator that Stokes often went to the dog track with
Knighten and Clark.
Stokes also testified at
the postconviction hearing. He stated
that in addition to informing his defense counsel about the existence of
Knighten and Clark, he also told defense counsel of their presence at the trial
“at least a half a dozen times,” but that defense counsel refused to call
either to testify.
At the Machner
hearing, Stokes’s defense counsel presented a much different account of the
sequence of events. He testified that
he subpoenaed many witnesses from Milwaukee and Arkansas, including Stokes’s
mother, but he had never known of Knighten until the morning of the first day
of the trial. He stated that the only
reason he took notice of Knighten at that time was because someone had told him
that Knighten had driven Stokes’s mother up from Arkansas. Stokes’s attorney testified that he had
never met Clark before the trial and was informed that he may have provided an
alibi only after the trial.
This case was previously
before this court to decide whether the trial court’s determination that
defense counsel had not provided ineffective assistance of counsel was
consistent with the facts. We found
that defense counsel’s decision not to call the witnesses may have been
prejudicial, but more facts were needed to determine whether his actions were
deficient. See State v. Stokes, No. 94-1358, unpublished
slip op. (Wis. Ct. App. April 4, 1995); see also Strickland v.
Washington, 466 U.S. 668 (1984) (articulating a two-pronged test
requiring defendant to show counsel’s performance was deficient and
prejudicial). We now conclude that the
trial court’s finding that defense counsel neither knew, nor could have
reasonably known, that Knighten and Clark were alibi witnesses is supported by
the record, and therefore, defense counsel’s performance was not deficient.
To establish ineffective
assistance of counsel, a defendant must show both that counsel’s performance
was deficient and also that this deficient performance was prejudicial. Strickland, 466 U.S. at
687. Analysis of both the performance
and prejudice prongs involve mixed questions of law and fact. State v. Johnson, 153 Wis.2d
121, 127, 449 N.W.2d 845, 848 (1990).
We will not reverse the trial court’s findings of fact unless the
findings are clearly erroneous. Id. The ultimate determination of whether
counsel’s performance was deficient and prejudicial is reviewed de novo. Id. at 128, 448 N.W.2d at
848. In applying the two-pronged Strickland
test, both elements must be satisfied—and if the defendant fails to adequately
show one prong, we need not address the second. Strickland, 466 U.S. at 697.
In our review of the
trial court’s findings, we consider that the trial court is the ultimate
arbiter of the credibility of defense counsel and all other witnesses at a
postconviction hearing on the claim of ineffective assistance of counsel. State v. Marty, 137 Wis.2d
352, 359, 404 N.W.2d 120, 123 (Ct. App. 1987).
In addition, because of the difficulties attendant to making a post hoc
evaluation of defense counsel’s performance, we recognize that “counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690
(emphasis added).
On remand, the trial
court evaluated the strength of Knighten and Clark’s testimony and found it to
be vague and contradictory. Knighten
claimed to have seen Stokes every day during April of 1992 because he saw
Stokes on his (Knighten) way to work and on his way home from work. Knighten, however, admitted to not knowing
what day of the week April 27, 1992 (date of the assault) was. Knighten’s testimony, simply stated, implies
that because Knighten believed that he saw Stokes every day in April of 1992,
he must have seen Stokes on April 27, 1992.
Knighten also testified that he stopped seeing Stokes on April 28th or
29th, when Stokes was taken to jail, whereas the record shows that Stokes was
not arrested until June of 1992.
Knighten testified that
he could not identify the lawyer with whom he had been in contact. Knighten’s testimony was contradictory in
that he first said that a lawyer, whose name he could not remember, had asked
him to come to Milwaukee to testify.
Then he testified that it was actually Stokes’s mother who asked him to
come to Milwaukee. Knighten stated that
once at the trial, “the lawyer” or the “little short guy” who testified earlier
in the hearing, had told him that he could not enter the courtroom, so Knighten
waited outside in the hallway.
The trial court found
Clark’s testimony at the postconviction hearing similarly incredible. Clark’s alibi for Stokes, like Knighten’s,
boils down to the implication that because Clark and Stokes often went to the
dog track, they must have done so on April 27, 1992. Like Knighten, Clark was not able to identify which day of the
week April 27, 1992 was. Although Clark
claimed to have contacted defense counsel before and during the trial, at the
postconviction hearing, Clark could never affirmatively testify that he had ever
talked to defense counsel. Throughout the hearing, the trial court found Clark
to be confused, particularly at one point when Clark had to be reminded where
he was. The court pointed to Clark’s age, hearing difficulties, and vague and
sometimes incoherent responses as evidence of Clark’s lack of credibility.
Neither Knighten nor
Clark could independently remember April 27, 1992. Likewise, neither Knighten nor Clark could testify with any
degree of certainty that they had ever been in contact with defense counsel
before trial.
On the other hand, the
trial court found defense counsel’s testimony that he had never heard of or met
either Knighten or Clark until the day of the trial to be more credible. Defense counsel testified that he was
introduced to Knighten on the first day of the trial, not as an alibi witness,
but as the individual who drove Stokes's mother and sister to Milwaukee for the
trial. Defense counsel also testified
that he had never heard of A.D. Clark before the trial, but that afterwards, at
the sentencing, Stokes proffered the name “A.B. Clark.”
The crux of defendant's
argument is that defense counsel was told of the additional alibi witnesses and
then failed to interview them. In
resolving this issue, the trial court must rely on the more credible testimony. As the determination of credibility is one
of the trial court’s duties, in light of its better position to gauge
truthfulness, we will follow its findings absent evidence that they are clearly
erroneous. Although testimony from
non-relative alibi witnesses would obviously be helpful to Stokes’s defense,
the trial court evaluated Knighten and Clark’s testimony and found it
unconvincing, and thus believed defense counsel’s version of events.
Concluding that defense
counsel did not know, nor could have known of the existence of these two alibi
witnesses, the trial court found defense counsel’s performance not
deficient. We affirm, based on the
trial court’s extensive findings of fact and support in the record.
Because the trial court
has provided ample justification for its conclusions, we conclude that Stokes
is not entitled to a new trial in the interest of justice. As Stokes’s defense counsel’s performance
was not deficient, Stokes “is not entitled to a second roll of the dice with
the hope that this time he will get lucky.”
State v. Flynn, 190 Wis.2d 31, 52, 527 N.W.2d 343, 351
(Ct. App. 1994) (citations omitted).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.