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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. 95-1837-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JARUTHH M. GATHINGS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. Jaruthh Gathings appeals from a judgment of conviction for
first-degree reckless homicide and from an order denying his motion for
postconviction relief.[1] Gathings argues that: (1) the trial court
erred by denying his ineffective assistance of counsel motion without a
hearing; (2) his statement made to police was taken in violation of his Miranda
rights; (3) the trial court erroneously exercised its discretion in admitting
photographs of the victim’s body; (4) the trial court’s imposition of the
maximum sentence was excessive; and (5) a reversal is required, pursuant to
§ 752.35, Stats. We reject Gathings's arguments and affirm.
I. Background.
In November of 1993, Gathings,
his brother J.C., and James Jackson went to a local tavern in the City of
Milwaukee. There, the Gathingses group
met the victim, Frank Marlow, his brother Robert, and two of their cousins. The two groups drank for a period of time,
until the defendant wished to visit his sister’s home. The Gathingses group traveled in Marlow’s
car while the other members of the Marlow contingent followed.
The car was stopped by
police and Marlow was advised by the detaining officer not to drive the car.
The officer was forced to leave when he received a higher priority call and
Jackson became the driver. Marlow was
upset by this and an argument ensued.
Jackson pulled the car into an alley where the occupants left the car
and proceeded to fight. While Marlow and
J.C. Gathings were fighting, Jaruthh Gathings threw a bottle at Marlow. Unsuccessful in his first attempt to stop
the fight, the defendant then picked up a cinder block with two hands and
struck Marlow in the head twice with the block. The defendant and his brother fled the scene and were arrested
later.
After his arrest, the
defendant gave a statement to Detective Kenneth Morrow in which he admitted to
hitting Marlow in the head with a cinder block, but claimed the act was done in
self-defense and the defense-of-another, his brother J.C. Before the questioning, Gathings was read
his Miranda rights. At
the Miranda-Goodchild hearing, the trial court concluded that
Gathings knowingly and voluntarily waived his Miranda rights and
that his confessional statements should be admitted into evidence.
At trial, the State
presented the expert testimony of Dr. John Teggatz, a forensic pathologist, and
Deputy Chief Medical Examiner for Milwaukee County. Dr. Teggatz testified that the injuries Marlow suffered
resulted from the impact of two blows against the head. Dr. Teggatz opined that the first blow
from the cinder block rendered Marlow unconscious and the second blow was
administered while Marlow’s head was in a supported position against the
sidewalk.
In addition to the
testimony of Dr. Teggatz, the State presented eight “3x5” photographs of the
victim depicting his location in the alley and the position of his body on the
sidewalk. The trial court admitted these
photographs into evidence, concluding that they would help the jury to
comprehend the nature of the injuries suffered by Marlow.
Following Gathings’s
conviction for first-degree reckless homicide, the trial court sentenced him to
the maximum term of twenty years.
II. Analysis.
Gathings first argues he
should have been granted a new trial because he received ineffective assistance
of trial counsel. The trial court
denied his new trial motion without a Machner hearing. Gathings argues that the trial court should
have held an evidentiary hearing before deciding his motion. We disagree.
Before a trial court
must grant an evidentiary hearing on an ineffective assistance of counsel
claim, a defendant must raise factual allegations in the motion and affidavits
that raise a question of fact for the court.
See State v. Washington, 176 Wis.2d 205, 214-15,
500 N.W.2d 331, 335-36 (Ct. App. 1993).
“A conclusory allegation of ineffective assistance of counsel,
unsupported by any factual assertions, is legally insufficient and does not
require the trial court to conduct an evidentiary hearing.” State v. Toliver, 187 Wis.2d
346, 360, 523 N.W.2d 113, 118 (Ct. App. 1994).
We review a trial court's denial of a motion for a Machner
hearing de novo. State v.
Tatum, 191 Wis.2d 547, 551, 530 N.W.2d 407, 408 (Ct. App. 1995). We must review the defendant's motion to
determine whether it contains factual allegations to support the dual-pronged
ineffective assistance of counsel standard set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984).
See State v. Saunders, 196 Wis.2d 45, 51, 538 N.W.2d 546,
549 (Ct. App. 1995). The first prong
requires that the defendant show that counsel's performance was deficient. State v. Johnson, 126 Wis.2d
8, 10, 374 N.W.2d 637, 638 (Ct. App. 1985), rev'd on other grounds, 133
Wis.2d 207, 395 N.W.2d 176 (1986). That
is, the defendant must show that counsel's conduct was “`unreasonable and
contrary to the actions of an ordinarily prudent lawyer.'” Id. at 11, 374 N.W.2d at 638
(citation omitted). The second prong
requires that the defendant show that the deficient performance was
prejudicial. Id. at 10,
374 N.W.2d at 638. To be considered
prejudicial, the defendant must show “that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different”—i.e., “a probability sufficient to undermine
confidence in the outcome.” Strickland,
466 U.S. at 694. Further, if the
defendant fails to adequately show one prong, we need not address the
second. Id. at 697.
Gathings's motion
alleges that his trial counsel should have presented expert testimony to rebut
the State’s expert witness. Gathings’s
motions, however, only raise conclusory allegations as to how expert testimony
would have supported his defense.
Gathings offers no factual evidence to indicate that another forensic
pathologist would have reached a different conclusion than that of Dr.
Teggatz. Gathings’s allegations are no
more than speculation, and, without explaining how trial counsel’s performance
fell below an objective standard of reasonableness, this court cannot find
counsel’s performance deficient. State
v. Teynor, 141 Wis.2d 187, 210-211, 414 N.W.2d 76, 85 (Ct. App. 1987).
Gathings also alleges
that trial counsel was ineffective because he should have presented evidence of
Marlow’s “violent tendencies and conduct,” and defendant’s knowledge of these
facts in support of defendant’s claim
of self-defense. Again, these
allegations are conclusory and mere speculation as Gathings set forth no
evidence showing that Marlow had violent tendencies and that the defendant knew
of them. “More is needed.” Saunders, 196 Wis.2d at 52,
538 N.W.2d at 549.
Our de novo
review supports the trial court's decision to deny Gathings's ineffective
assistance of counsel motion without a Machner hearing.
Gathings next argues
that the trial court improperly admitted the photographs of Marlow’s body lying
in the alley. He claims that the
photographs were both prejudicial and cumulative in light of the testimony of
Dr. Teggatz, who used charts and three-dimensional models to explain the effect
of the cinder block striking the victim’s head to support his opinion that the
victim's head was struck by a second blow in a supported position.
The trial court has wide
discretion in determining whether photographs are to be allowed into
evidence. Hayzes v. State,
64 Wis.2d 189, 198, 218 N.W.2d 717, 722 (1974). It is within the purview of the trial court to decide whether to
admit photographs because they better illustrate the situation than does the
testimony of the witness or to exclude the photographs because they are not
substantially necessary to show material facts or conditions, and might arouse
sympathy, or divert the minds of the jury to improper considerations. Neuenfeldt v. State, 29 Wis.2d
20, 32-33, 138 N.W.2d 252, 259 (1965), cert. denied, 384 U.S. 1025
(1966). Unless the record does not
reflect the reasons for the trial court's decision or the only purpose for the
photographs is to inflame and prejudice the jury, the trial court's discretion
will be upheld. Hayzes,
64 Wis.2d at 200, 218 N.W.2d at 723.
Because the defendant
chose to pursue a defense of self-defense, whether excessive force was utilized
by the defendant necessarily was an issue for the jury to decide. Thus, the nature and severity of the
injuries suffered by the victim were paramount in resolving the question of excessive
force. The trial court explained the
reasoning for admitting the photographs, stating:
This is different from many
homicides. This is not a case where we
have no dispute as to how the victim died, such as someone who is found with a
bullet wound and there is no dispute that that gunshot caused the death of the
individual. This is a case whether or
not excessive force was used in self-defense.
We
have viewed the photographs in question and find that they are probative in
determining the issue of whether excessive force was employed by Gathings. While the photographs may be somewhat
cumulative, in light of the testimony of Dr. Teggatz, they are nonetheless
helpful in aiding the jurors’ understanding of his testimony. We find that the reasoning applied by the
trial court was proper, and while reasonable minds may differ as to whether the
photographs were prejudicial, that is not the appropriate standard of
review. The record contains evidence
supporting the trial court’s decision—accordingly, there was no erroneous
exercise of discretion.
Gathings next argues
that his statement admitting guilt and his waiver of Miranda
rights were not voluntary. To support
this claim, Gathings points to his learning disability and his limited
educational background. These factors,
Gathings claims, precluded him from understanding the full import of the Miranda
rights as they were read. In addition,
Gathings argues these factors contributed to his confusion during the
interrogation by police detectives and subsequent confession.
The trial court concluded
at the Miranda hearing that there was no evidence of threat or
coercion on the part of the police detectives.
Having decided such, the trial court focused on the remaining issue,
whether the defendant was given his Miranda rights. At the hearing, Gathings testified that he
could not remember being read his Miranda rights, while Detective
Morrow testified to the contrary. The
trial court found Detective Morrow’s testimony to be more credible and
concluded that the defendant had been read his Miranda rights.
Upon review of lower
court proceedings involving Miranda-Goodchild hearings, this
court will not upset the findings of fact unless it appears they are against
the great weight and clear preponderance of the evidence. Norwood v. State, 74 Wis.2d 343,
361, 246 N.W.2d 801, 811 (1976), cert. denied, 430 U.S. 949 (1977). In looking at whether a confession or
admission can be called voluntary, we look to the totality of
circumstances. State v.
Schneidewind, 47 Wis.2d 110, 117, 176 N.W.2d 303, 307 (1970). In order to find Gathings's statement was
involuntary, “there must be some affirmative evidence of improper police
practices deliberately used to procure a confession.” State v. Clappes, 136 Wis.2d 222, 239, 401 N.W.2d
759, 767 (1987).
In assessing the
totality of circumstances, we must balance the personal characteristics of the
defendant against any pressures imposed by the police, such as misleading or
not informing the defendant of his right to counsel and right against
self-incrimination. While Gathings's
mental capacity is certainly an important factor, we find no convincing
evidence presented that indicates his ability to waive his Miranda
rights was impaired. The trial court
concluded that although learning-disabled, Gathings understood the rationale
underlying the Miranda warnings, notably the concept of hiring a lawyer or
having one appointed, the concept of attorneys, and the concept of remaining
silent. This, in conjunction with the testimony
of Detective Morrow, led the trial court to conclude there had been a voluntary
waiver. We recognize that the trial
court in this case is the ultimate arbiter of credibility of witnesses. Additionally, the trial court noted that
Gathings signed the statement and wrote in his own writing the word “true” at
the end of the statement. The trial
court’s findings on this matter are given great deference, and any conflicts in
the testimony regarding circumstances surrounding the statements must be resolved
in favor of the trial court’s findings.
McAdoo v. State, 65 Wis.2d 596, 608, 223 N.W.2d 521, 528
(1974). We, therefore, affirm the trial
court’s findings that Gathings knowingly, intelligently, and voluntarily waived
his Miranda rights.
Gathings next argues
that a reversal is warranted pursuant to § 752.35, Stats., which provides in part:
In an appeal to the court of appeals, 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, the court
may reverse the judgment or order appealed from.
Hence, this court may
order a new trial in the interests of justice only “where the real controversy
has not been fully tried or there is a substantial degree of probability that a
new trial will likely produce a different result.” State v. Neuser, 191 Wis.2d 131, 140, 528 N.W.2d
49, 53 (Ct. App. 1995). However, we
have rejected the defendant’s previous claims of trial court error in the
discussion above. As these claims are
without merit, we deny the defendant’s attempt to combine a final catch-all
plea for reversal in the interests of justice with arguments that have already
been rejected. State v. Echols,
152 Wis.2d 725, 745, 449 N.W.2d 320, 327 (Ct. App. 1989).
Finally, Gathings argues
that the trial court’s imposition of the maximum sentence of twenty years was
improper. Gathings alleges that the
sentencing places too much emphasis on the defendant’s character, especially
the trial court’s belief that the defendant was not sufficiently remorseful.
The factors to be
considered by the trial court in sentencing include: (1) the gravity of
the offense; (2) the character and rehabilitative need of the defendant; and
(3) the need to protect the public. State
v. Jones, 151 Wis.2d 488, 495, 444 N.W.2d 760, 763 (Ct. App.
1989). The weight to be attributed to
each factor is within the discretion of the sentencing judge. State v. Paske, 163 Wis.2d 52,
63-64 n.6, 471 N.W.2d 55, 59 n.6 (1991).
An erroneous exercise of discretion in the sentencing process will only
be found where the sentence is so excessive and so disproportionate to the
offense as to shock public sentiment and violate the judgment of reasonable
people concerning what is right and proper.
State v. Killory, 73 Wis.2d 400, 408, 243 N.W.2d 475, 481
(1976). Our review is limited to the
determination of whether the trial court has erroneously exercised its
discretion. If the record contains
evidence that discretion was properly used, we must affirm. State v. Cooper, 117 Wis.2d
30, 40, 344 N.W.2d 194, 199 (Ct. App. 1983).
The trial court in this
case properly explained its reasoning for imposing the maximum sentence and
properly considered the three factors, the gravity of the offense, the
defendant’s personal characteristics, and the need to protect the
community, to be considered in the
deliberation of any sentence. The trial
court evaluated the gravity of the offense and found Gathings’s conduct after
the offense to be inexcusable, stating:
By your own testimony, you smashed Mr.
Marlow in the head with that chunk of concrete and left him to die in the
alley, and you were a person that he thought was a friend.
In
considering the defendant’s personal characteristics, the trial court noted his
alcohol problem and need for treatment.
In addition, the trial court pointed to the fact that a presentence
report reflected Gathings’s lack of remorse and apparent sorrow for
himself. The trial court also posited
that this lack of remorse and lack of appreciation for the seriousness of the
crime posed a danger to the community as a whole. Simply because Gathings feels the trial court improperly focused
on his personal character, is not reason enough to overturn his sentence. In actuality, this lack of remorse relates,
to a large extent, to all three factors considered in sentencing.
Additionally, to say
that the trial court simply looked to Gathings’s lack of remorse is
inconsistent with the record. According
to the record, the court looked to Gathings’s alcohol problem and need for
rehabilitation, the presentence report prepared by one who spent time with
Gathings, statements presented by the victim’s family, and the statements
offered by defendant and his counsel in which the mitigating circumstances for
the crime were submitted for the trial court’s consideration.
The record is replete
with evidence that the trial court properly exercised its discretion. The trial court’s extensive discussion of
the reasons why Gathings should receive the maximum sentence is evidence that
this discretion was not erroneously exercised.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.