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COURT OF APPEALS DECISION DATED AND RELEASED June 25, 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. 95-1893-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MELVIN CABALLERO,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: STANLEY A. MILLER, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER
CURIAM. Melvin Caballero appeals from a judgment convicting
him of first-degree reckless homicide while armed, as party to a crime. See §§ 940.02(1), 939.63 and
939.05, Stats. Caballero also appeals from an order denying
his post-conviction motion. Caballero
claims: (1) that he was denied
effective assistance of counsel; and (2) that his confession should have been
suppressed.
Caballero was charged
with first-degree reckless homicide while armed, party to a crime, based upon
his role in the death of Nelson Morales.
After his arrest, Caballero gave a statement to the police, implicating
himself in the death of Morales. After
a jury trial, Caballero was convicted as charged. Caballero filed a post‑conviction motion challenging trial
counsel's effectiveness. The motion was
denied.
1. Ineffective
Assistance of Counsel.
First, Caballero alleges
that the trial court erroneously denied his claim of ineffective assistance of
counsel without holding a Machner hearing.[1] 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 v. Washington, 466
U.S. 668, 687 (1984). 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.” Id.,
466 U.S. at 694.[2] Normally, a post-conviction challenge to the
effectiveness of trial counsel requires an evidentiary hearing at which counsel
testifies regarding the defendant's assertions of deficient performance. State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979).
If a post‑conviction motion alleges facts that, if true, would
entitle the defendant to relief on his claim of ineffective assistance, the
trial court must hold a Machner hearing. See State v. Bentley,
195 Wis.2d 580, 587, 536 N.W.2d 202, 204 (Ct. App. 1995) (conclusory
allegations unsupported by factual assertions, however, are legally
insufficient to compel a Machner hearing).
In his post-conviction
motion, Caballero argues that trial counsel was ineffective for: (1) failing to hire a private investigator;
(2) failing to disclose pending attorney disciplinary charges against him; (3)
failing to file pretrial motions; (4) failing to object to testimony during
trial; and (5) failing to hire an expert to ascertain Caballero's ability to
understand the ramifications of his confession. The trial court determined that Caballero's arguments consisted
solely of conclusory allegations and that he provided no factual support for
his allegations. The trial court
concluded that Caballero did not meet the Strickland test, and
denied his motion without a Machner hearing. We agree.
Regarding the failure to
hire a private investigator to locate witnesses, Caballero states that defense
counsel failed to subpoena three witnesses who allegedly saw two individuals of
another race leaving the crime scene.
Caballero, however, does not indicate how there was a reasonable
probability that these witnesses would have had the potential to alter the
outcome of the case. See State
v. Johnson, 153 Wis.2d 121, 129, 449 N.W.2d 845, 848 (1990). Trial counsel called five different
witnesses to substantiate Caballero's claim that he was elsewhere at the time
of the death of Morales. The jury chose
not to believe Caballero's version of the events. Caballero's naked assertions are insufficient to necessitate an
evidentiary hearing.
Caballero also argues
that the trial counsel's failure to disclose pending attorney disciplinary
charges against him deprived him of effective assistance of counsel. He cites no authority for this claim, and
does not indicate how this prejudiced him.
We will not address this argument.
See State v. Shaffer, 96 Wis.2d 531, 545–546, 292
N.W.2d 370, 378 (Ct. App. 1980) (we disregard arguments unsupported by
references to authority).
Caballero next argues
that trial counsel was ineffective for failing to file various pretrial motions
and discovery demands. The trial court
determined that trial counsel was able to adopt all of the motions filed by
Caballero's co-defendant, which sought the same relief Caballero asserts should
have been sought by his trial counsel. Where discovery demands are not filed by
trial counsel, his duty to diligently investigate and secure information is not
breached if the information is obtained in another way. State v. Pitsch, 124 Wis.2d
628, 639–640, 369 N.W.2d 711, 717–718 (1985).
Further, Caballero does not indicate what evidence would have been
suppressed or discovered if his trial counsel had filed the motions and
discovery demands. Caballero,
therefore, has not shown prejudice.
Caballero also argues
that trial counsel was ineffective for failing to object to any trial testimony
during trial. He does not, however,
indicate what particular trial testimony was objectionable or explain how his
defense was prejudiced by trial counsel's failure to make objections at
trial. This allegation, therefore, is
insufficient to necessitate a Machner hearing.
Finally, Caballero
contends that trial counsel should have hired an expert to aid the trial court
in determining his ability to understand the ramifications of his
confession. Again, Caballero does not
tell us what this expert testimony would have been—he has not shown prejudice.
2. The
Confession.
Caballero claims that
his confession should have been suppressed because it was the result of
improper pressure by the police. The
trial court determined at a mid-trial Miranda-Goodchild hearing
that Caballero's statement to the police implicating himself in the death of
Morales was knowingly and voluntarily made.
We will not upset a trial court's findings of historical or evidentiary
fact unless they are contrary to the great weight and clear preponderance of
the evidence. State v. Clappes,
136 Wis.2d 222, 235, 401 N.W.2d 759, 765 (1987); see § 805.17(2), Stats.
As to the credibility of disputed testimony in relation to historical or
evidentiary facts, this court will not substitute its judgment for that of the
trial court. Turner v. State,
76 Wis.2d 1, 18, 250 N.W.2d 706, 715 (1977).
Our review of the record
indicates that the trial court identified the dispositive issue regarding the
voluntariness of Caballero's statement.
The trial court summarized the testimony of all the witnesses and then
stated:
There's
nothing in the record as to [Caballero] that would indicate that [he was] held
under conditions that would have caused [him] to feel pressure and would cause
[him] to give the statement[] under duress.
So the court finds that [Caballero] gave the
statement[] freely and voluntarily after having been properly advised of his
Miranda rights....
In
the instant case, the trial court was required to suppress the defendant's
statement if it found that the statement was coerced or the product of improper
pressures exercised by the police. Clappes,
136 Wis.2d at 235–236, 401 N.W.2d at 765.
The fact that the trial court expressly found Caballero's statement to
be voluntary and denied his suppression motion indicates that it did not find
credible Caballero's assertions of improper pressures. The trial court's findings are not “clearly
erroneous,” id., 136 Wis.2d at 235, 401 N.W.2d at 765, and
support its denial of Caballero's suppression motion.
Caballero also claims
that he is entitled to have his confession suppressed because of an alleged Riverside
violation, specifically that he did not receive a probable-cause review within
48 hours of confinement. A suspect
arrested without a warrant has a Fourth Amendment right to prompt judicial
determination of whether probable cause existed for his arrest. Gerstein v. Pugh, 420 U.S.
103, 124–125 (1975). Absent
extraordinary circumstances, “prompt” means within 48 hours. County of Riverside v. McLaughlin,
500 U.S. 44, 56–57 (1991). The trial
court determined that there was a Riverside violation here but
noted that Caballero never sought to have his confession suppressed as a
result. An alleged Riverside
violation is waived unless it is raised before the trial court. United States v. Alvarez-Sanchez,
114 S. Ct. 1599, 1605 n.5 (1994). Since
Caballero failed to make a Riverside objection at trial, we will
not address this issue. See Wirth
v. Ehly, 93 Wis.2d 433, 443–444, 287 N.W.2d 140, 145–146 (1980)
(appellate court will not generally review issues raised for first time on
appeal).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Caballero bases his ineffective assistance of counsel claim on case law interpreting the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. Caballero argues that Article I, Section 7 of the Wisconsin Constitution requires that the State bear the burden of showing that a defendant was not prejudiced by the ineffectiveness of counsel. Caballero bases his argument on State v. Marty, 137 Wis.2d 352, 356, 404 N.W.2d 120, 122 (Ct. App. 1987), where the court suggested that the analysis of whether the defendant has been prejudiced as a result of deficient representation may differ under the state and federal constitutions. Wisconsin applies the Strickland test. See, e.g., State v. Sanchez, No. 94-0208, 1996 WL 26999 at ***3-9 (May 22, 1996).