COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
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. 95-2048-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SAMUEL D. CLAY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Dane County: JACK F. AULIK, Judge.
Affirmed.
Before Dykman, P.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Samuel Clay appeals from a judgment convicting him as
a party to the crime of possessing cocaine with intent to deliver. He also appeals from an order denying
postconviction relief. Clay's
conviction carried with it penalty enhancers under § 161.48(3), Stats., because he was a repeater, and
under § 161.49, Stats.,
because the offense took place within 1000 feet of a youth center. He raises issues concerning trial counsel's
effectiveness, the sufficiency of the information, the constitutionality of
§ 161.49, the sufficiency of the evidence presented at the preliminary
examination and the State's use of a co-defendant's out-of-court
statements. We reject his arguments on
these issues and affirm.
The complaint charged
Clay as a party to the crime of possessing cocaine with intent to deliver, as a
repeater. At the preliminary
examination, the State did not present evidence on the § 161.49, Stats., penalty enhancer. The State subsequently filed an information,
however, with words obviously omitted, that added the following
allegation: "invoking the
provisions of § 161.49 of the Wisconsin Statutes, the above offense
occurred the Sommerset Community Center and, therefore, the maximum term of
imprisonment may be increased ...."
At trial, before the State presented its case, the court allowed an
amendment to the information correcting the above-quoted allegation by adding
the words "within 1000 feet" after "occurred."
The principal witness
against Clay was his girlfriend and co-defendant Aretha Kimble. Appearing under a grant of immunity, she
offered inculpatory testimony concerning Clay's involvement with possession and
sale of cocaine on the night of their arrest.
She offered exculpatory testimony as well. Over Clay's objection, the State also presented testimony from a
police officer concerning inculpatory statements Kimble made about Clay during
police interrogations.
Clay did not
testify. His postconviction motion
alleged that he wanted to but could not because counsel was not prepared to
call him as a witness. She admitted as
much, the reason being, in her recollection, that Clay made his own decision
not to testify because of his extensive criminal record. The trial court believed counsel's testimony
and denied relief.
Clay failed to
demonstrate counsel's ineffectiveness in failing to prepare for his testimony. The trial court expressly believed counsel's
reasons, and expressly disbelieved Clay's contrary assertion. That ends the matter. A trial court's credibility determinations
are not subject to reversal. Turner
v. State, 76 Wis.2d 1, 18, 250 N.W.2d 706, 715 (1977). If Clay voluntarily chose not to testify,
counsel had no reason to waste time preparing to call him as a witness.
The information provided
Clay with sufficient notice of the § 161.49, Stats., enhancer.
That section provides for an enhanced penalty for possessing drugs with
intent to deliver them within 1000 feet of a public park, correctional
facility, public housing project, public swimming pool, youth center or
community center. Clay contends that
because the information only cited the statute and named the Sommerset
Community Center, it left him unable to prepare a defense because it did not
tell him into what category within § 161.49 the Center fell. We disagree. Clay knew that the center necessarily fit into one of the listed
categories. Clay was therefore able to
prepare his defense with proof that, in fact, it fell into none of the
categories. Additionally, the record
shows that Clay had actual notice apart from the information that the State
intended to prove that the center was a youth center as that term is used in
§ 161.49 and defined in § 161.01(22), Stats.
Section 161.49, Stats., is not unconstitutionally
vague. A criminal statute is
unconstitutionally vague if some ambiguity or uncertainty in the gross outlines
of the prohibited conduct deprives persons of ordinary intelligence of fair
notice of the prohibition and allows enforcers of the prohibition and those who
adjudicate guilt to apply subjective or arbitrary standards. State v. Wickstrom, 118 Wis.2d
339, 351-52, 348 N.W.2d 183, 190 (Ct. App. 1984). Here, § 161.49 contains no such ambiguity. It plainly identifies a set of acts to which
a penalty enhancer applies if done within 1000 feet of a readily identifiable
set of public areas. It therefore gives
fair notice of the prohibition and sets up clear, objective standards for
enforcement.
The State properly
charged the § 161.49, Stats.,
penalty enhancer despite the absence of any evidence pertaining to that
enhancer at the preliminary hearing.
Clay relies on State v. Williams, 186 Wis.2d 506, 508, 520
N.W.2d 920, 921 (Ct. App. 1994), in which this court held that the penalty
enhancer must be established at the preliminary examination to be charged in
the information in a multi-count prosecution.
The supreme court has since reversed that holding, State v.
Williams, 198 Wis.2d 479, 483, 544 N.W.2d 400, 401 (1996), which, in
any event, only applied to multi-count complaints.
The trial court properly
allowed testimony concerning Kimble's out-of-court statements. Clay contends that admitting the statements
violated his rights to due process and confrontation. However, the cases he relies on concern out-of-court statements
made by a co-defendant who did not testify.
Here, Kimble testified and Clay cross-examined her.
Additionally, Clay
suggests that the statements were inadmissible because they do not fall within
the scope of any exception to the hearsay rule. However, the record does not support that contention. In several respects, Kimble's trial
testimony materially contradicted her earlier statements. A statement is not hearsay if the declarant
testifies at trial and is subject to cross-examination regarding the statement,
and the statement is inconsistent with the declarant's testimony. Section 908.01(4)(a), Stats.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.