COURT OF APPEALS DECISION DATED AND FILED May 29, 2013 Diane M. Fremgen Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
Appeal No. |
Cir. Ct. No. 2004CF1178 |
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT I |
|||
|
|
|||
|
|
|||
State of Wisconsin, Plaintiff-Respondent, v. Warren Jamaal Wells, Defendant-Appellant. |
||||
|
|
|||
APPEAL from an order of the circuit court for Milwaukee County: rebecca f. dallet, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Warren Jamaal Wells, pro se,
appeals an order denying his postconviction motion, filed under Wis. Stat. § 974.06, seeking relief
from his conviction for first-degree intentional homicide while armed and as a
party to a crime. He claims that the
State improperly charged him as a party to a crime without also charging and
prosecuting a co-actor, and that the two lawyers who represented him at trial
were ineffective for failing to investigate, to present certain witnesses, and
to make appropriate motions. He alleges
that his postconviction lawyer was ineffective for failing to raise these
claims. We reject his arguments and
affirm.
I.
¶2 Wells
confessed to shooting Christopher Blucher to death. The State charged Wells with first-degree
intentional homicide while using a dangerous weapon, as a party to a
crime. Wells moved to suppress his
confession, but the trial court denied the motion. The matter proceeded to a jury trial. Three State’s witnesses testified that they
saw the shooting, that they knew Wells, and that they recognized him as the
shooter.[1] Two of those witnesses also testified that
Armondo Cornelius was present with Wells at the scene of the shooting. The jury found Wells guilty as charged.
¶3 Wells
pursued a direct appeal, seeking a new trial on the ground that the trial court
erroneously admitted his confession into evidence. We denied the claim and affirmed Wells’s
conviction. See State v. Wells, No. 2007AP801-CR, unpublished slip op. (WI App
Apr. 1, 2008).
¶4 Next,
Wells filed the postconviction motion underlying this appeal. Proceeding pro se, he claimed that the lawyer who represented him during
postconviction proceedings was constitutionally ineffective because that lawyer
did not raise claims of prosecutorial misconduct or allege that Wells’s trial
lawyers were ineffective. The circuit
court rejected Wells’s claims without a hearing, and he appeals.[2]
II.
¶5 Wells
claims that his postconviction lawyer was ineffective for not challenging the
effectiveness of his trial lawyers and for not alleging prosecutorial
misconduct. The two-pronged test for
claims of ineffective assistance of counsel requires a defendant to prove both
that the lawyer’s performance was deficient and that the deficiency prejudiced
the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). To demonstrate
deficient performance, the defendant must show specific acts or omissions of
the lawyer that are “outside the wide range of professionally competent
assistance.” Id. at 690. To demonstrate prejudice, “[t]he 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. at 694. If a defendant fails to satisfy one prong of
the analysis, the reviewing court need not address the other. Id. at 697.
¶6 A
lawyer is not ineffective for failing to make claims that would have been
denied. See State v. Berggren,
2009 WI App 82, ¶21, 320 Wis. 2d 209, 228, 769 N.W.2d 110, 118–119. If Wells’s allegations of prosecutorial
misconduct and trial lawyer error lack merit, his postconviction lawyer had no
obligation to pursue them. See State ex rel. Rothering v. McCaughtry,
205 Wis. 2d 675, 678, 556 N.W.2d 136, 138 (Ct. App. 1996). Accordingly, we turn to an examination of
those allegations.
¶7 We
begin by considering Wells’s contentions that, because the State did not charge
anyone as his accomplice in this case, the State failed to demonstrate that
Wells was a party to the crime of first-degree intentional homicide while
armed, and, relatedly, that the State failed to prove the elements of the
offense. Wells believes that these
alleged flaws in the proceedings constitute prosecutorial misconduct and that his
postconviction lawyer was constitutionally ineffective for not pursuing such a
claim. We disagree.[3]
¶8 First,
Wis. Stat. § 939.05, which
governs party-to-a-crime liability, provides that every person concerned in the
commission of a crime may be charged with and convicted of committing it. See § 939.05(1). The statute further provides that a person is
concerned in the commission of a crime if, inter
alia, the person directly commits the crime or intentionally aids and abets
the commission of it. See § 939.05(2)(a)–(b). Therefore, the State may prosecute a person as
a party to a crime “without convicting other participants or establishing the
identity of the principal.” State
v. Zelenka, 130 Wis. 2d 34, 47, 387 N.W.2d 55, 60–61 (1986).
¶9 Second,
“[t]he party to a crime charge does not add to or alter the elements of the
offense to which the defendant is charged as a party. The manner of participation in a crime is not
an element of the offense to which one is charged as party to a crime.” State v. Horenberger, 119
Wis. 2d 237, 243, 349 N.W.2d 692, 695 (1984).
¶10 The
State thus did not act improperly by prosecuting Wells as a party to a homicide
without also charging a co-actor or proving the identity of an accomplice. Wells’s allegations to the contrary lack merit,
and his postconviction lawyer was therefore not ineffective by foregoing them.
¶11 Next,
Wells asserts that his trial lawyers were ineffective by failing to
“investigate” Cornelius, who allegedly accompanied Wells to the scene, and by
failing to offer Cornelius’s testimony at trial. Wells supports his contention by pointing to
a discussion during trial between the lawyers and the trial court touching on
the alibi that Cornelius offered police.
The Record reflects that the State disclosed this alibi to the defense
during the discovery process, and Wells implies that, if called to testify at
trial, Cornelius would have said that he was not present at the scene when
Blucher was killed. Wells further
implies that his trial lawyers failed him because Cornelius’s hoped-for
testimony would have undermined the credibility of the State’s witnesses who
claimed to have seen Cornelius with Wells at the time of the offense. Wells asserts that his postconviction lawyer
was constitutionally ineffective in turn by not making these claims.
¶12 Our
analysis is governed by the rule that when a defendant claims that a trial
lawyer was ineffective for failing to take specific actions, the defendant “‘must
show with specificity what the actions, if taken, would have revealed and how
they would have altered the outcome of the proceeding.’” See State v. Provo, 2004 WI App 97,
¶15, 272 Wis. 2d 837, 850, 681 N.W.2d 272, 278 (citation omitted). Here, however, Wells’s postconviction motion
does not disclose the details of Cornelius’s statement to police, nor does the
motion include any affidavits or statements from Cornelius as to what he would
have said under oath. Indeed, Wells
fails to demonstrate that Cornelius would have testified at all rather than
invoked his right to remain silent. See U.S. Const.
amend. V. As the circuit court
explained: “it is completely unknown
what the testimony of Armondo Cornelius would have been, how it would have
changed the outcome of the trial, or even if his whereabouts were known to
anyone.” Wells thus does not show that
he suffered any prejudice as a consequence of his trial lawyers’ actions or
inactions in regard to Cornelius. See Strickland,
466 U.S. at 687. Because Wells does not
demonstrate that his trial lawyers were ineffective, he necessarily does not
demonstrate that his postconviction lawyer erred by failing to allege their
ineffectiveness. See State v. Ziebart,
2003 WI App 258, ¶15, 268 Wis. 2d 468, 480, 673 N.W.2d 369, 375 (to
establish postconviction lawyer’s ineffectiveness for failing to challenge
trial lawyer’s effectiveness, defendant must show that trial lawyer was
constitutionally ineffective).
¶13 Next,
Wells contends that his trial lawyers were ineffective by not ensuring that an
alibi witness, Francisco Mercado, testified at trial. Again, however, Wells fails to support his
claim. First, Wells did not submit an
affidavit from Mercado reflecting the testimony he would have given. See Provo, 2004 WI App 97, ¶15, 272
Wis. 2d at 850, 681 N.W.2d at 278.
Second, although the Record shows that Mercado told police that Wells
was at Mercado’s home at some point on the date of the homicide, the jury heard
Wells’s admission that he was at Mercado’s home only “before and after,” rather
than during, the time of the shooting.
Wells fails to demonstrate why Mercado’s testimony would have had any
effect on the outcome of the trial in light of this admission. See
ibid.
¶14 Moreover,
when assessing claims of a lawyer’s ineffectiveness, we make every effort “to
avoid determinations of ineffectiveness based on hindsight ... and the burden is
placed on the defendant to overcome a strong presumption that counsel acted
reasonably within professional norms.” See State
v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845, 847–848 (1990). In this case, the parties and the trial court
made a record during trial regarding the herculean efforts expended to persuade
Mercado to come to the courthouse voluntarily.
When Mercado refused, the trial court offered to issue a body attachment
directing law enforcement officers to arrest him and bring him to court by
force. Wells’s trial lawyers declined
that offer, deciding, as summarized by the trial court, that “it was unwise and
impermissibly risky to have Mr. Mercado arrested and have him brought into the
courtroom against his will to say at that point something that may not have
been helpful for the defense.”
¶15 The
trial lawyers thus made a strategic decision about how to proceed when a
potential witness proved uncooperative.
We “will not second-guess a trial attorney’s ‘considered selection of
trial tactics … in the face of alternatives that have been weighed by trial
counsel.’” State v. Elm, 201 Wis. 2d
452, 464, 549 N.W.2d 471, 476 (Ct. App. 1996) (citation omitted). Here, Mercado’s statements to police did not
firmly establish the alibi that Wells needed.
The potential benefits of introducing Mercado’s testimony therefore did
not, in the trial lawyers’ view, outweigh the risks of compelling Mercado to appear
when the precise scope of his testimony was rendered uncertain by his lack of
cooperation. The lawyers’ assessment
here was well within professional norms.
Cf. State v. Cathey, 32 Wis. 2d 79, 91, 145 N.W.2d 100, 106
(1966) (stating that, “[a]s a matter of tactics it is inadvisable to ask a
question directly pertaining to a crucial or critical fact on which the outcome
of the case might well depend unless the examiner is reasonably confident the
answer will be favorable”). Accordingly,
Wells’s postconviction lawyer had no obligation to challenge that
assessment. See Elm, 201 Wis. 2d at 464–465, 549 N.W.2d at 476 (“A
strategic trial decision rationally based on the facts and the law will not
support a claim of ineffective assistance of counsel.”).
¶16 Next,
Wells asserts that his postconviction lawyer should have challenged the
effectiveness of his trial lawyers’ response to testimony about a lie detector
test. A State’s witness testified that
she was interviewed several times by police, and the State asked her whether
she told the truth during those interviews.
The witness replied, “yes sir.
That is why I took a lie detector test.”[4] Wells believes that the testimony ran afoul
of the rule that “[t]he result of a polygraph test is inadmissible in
Wisconsin.”[5]
See
State v. Shomberg, 2006 WI 9,
¶39, 288 Wis. 2d 1, 31, 709 N.W.2d 370, 384. In Wells’s view, his trial lawyers should
have either sought a curative jury instruction or moved for a mistrial.
¶17 The
Record reflects that, after the jury left the courtroom, one of Wells’s trial
lawyers told the trial court that he and Wells had discussed the testimony
about a lie detector test and that the defense did not want the court to give a
curative jury instruction. The lawyer
explained that an instruction would only focus the jury’s attention on the
testimony. This is a reasonable
strategic decision that a reviewing court will not second-guess. See
Elm,
201 Wis. 2d at 464, 549 N.W.2d at 476.
¶18 Wells’s
trial lawyers also advised the trial court that the defense elected not to move
for a mistrial. Although the lawyers did
not explain the basis for that decision, we need not consider whether they
performed deficiently in making it.[6] Wells fails to show that he was prejudiced
when his lawyers did not request a mistrial because he demonstrates no
likelihood that the trial court would have granted the request.
¶19 Mistrial
in a criminal case is a drastic remedy. See State
v. Adams, 221 Wis. 2d 1, 17, 584 N.W.2d 695, 702 (Ct. App.
1998). Whether to grant such a remedy
rests in the trial court’s sound discretion.
See State v. Ross, 2003 WI App 27, ¶47, 260 Wis. 2d 291, 317,
659 N.W.2d 122, 134. “[T]he [trial] court
must decide, in light of the entire facts and circumstances, whether the
defendant can receive a fair trial.” State
v. Ford, 2007 WI 138, ¶29, 306 Wis. 2d 1, 13, 742 N.W.2d 61, 66.
¶20 The
Record here plainly shows that the trial court did not view the witness’s mention
of a lie detector test as sufficient to undermine the integrity of the
trial. Rather, the trial court expressly
agreed with the defense that not even a curative jury instruction was required. Indeed, the trial court stated that the
witness’s reference to a lie detector test “could have been lost” on the jury
entirely. The Record thus establishes
that Wells suffered no prejudice from his trial lawyers’ decision not to request
a mistrial based on testimony about a lie detector test, because the trial
court did not consider the testimony significant and would not have granted the
request. See Berggren, 2009 WI
App 82, ¶21, 320 Wis. 2d at 228, 769 N.W.2d at 118–119. Wells therefore does not demonstrate that his
postconviction lawyer was ineffective for failing to raise the issue. See Ziebart, 2003 WI App 258, ¶15, 268
Wis. 2d at 480, 673 N.W.2d at 375.
¶21 Finally,
Wells complains that the State violated Wis.
Stat. § 971.23(8) during closing argument by commenting on Wells’s
failure to call Mercado as an alibi witness.
The statute provides, in pertinent part:
“if at the close of the defendant’s case the defendant does not call
some or any of the alibi witnesses, the [S]tate shall not comment on the
defendant’s ... failure to call some or any of the alibi witnesses.” Ibid. Here, however, the State told the jury that
“Mercado didn’t walk in the door.” Wells
contends now that his postconviction lawyer was ineffective by not alleging
that: (1) prosecutorial misconduct
entitled Wells to a mistrial; and (2) Wells’s trial lawyers were
constitutionally ineffective by failing to seek a mistrial following the
prosecutor’s statement.[7] We are not persuaded.
¶22 In
chambers, Wells’s trial lawyers told the trial court that they had discussed the
prosecutor’s comment with Wells in light of Wis.
Stat. § 971.23(8). One of
the lawyers then explained that “we – I’m not going to ask for anything. I thought I would raise it. We don’t want a mistrial. I would not ask for a curative
[instruction].” In response to the trial
court’s inquiry, the lawyer again confirmed that the defense wanted neither a
mistrial nor a curative instruction.
¶23 In
light of the foregoing, a reviewing court would not have entertained a claim
that Wells was wrongly denied a mistrial following the prosecutor’s remark that
“Mercado did not walk in the door.” A
party may not insist on one position before the trial court and then successfully
assert error because the trial court adopts that position. State v. Washington, 142 Wis. 2d
630, 635, 419 N.W.2d 275, 277 (Ct. App. 1987).
Such tactics are barred by principles of judicial estoppel. Ibid. Here, Wells’s trial lawyer repeatedly advised
the trial court that the defense wanted no remedy for the prosecutor’s comment,
and Wells therefore could not complain later because he received no
remedy. See ibid. Wells’s postconviction lawyer was not
ineffective for failing to raise a claim that would have been precluded. See
Rothering,
205 Wis. 2d at 678, 556 N.W.2d at 138.
¶24 The
remaining questions are whether Wells shows that his trial lawyers were
ineffective for not requesting a mistrial and whether he shows that his
postconviction lawyer was ineffective in turn for failing to challenge the
trial lawyers’ alleged ineffectiveness.
He has not made the necessary showings.
¶25 The
Record conclusively demonstrates that Wells and his trial lawyers made a
strategic decision to take their chances on the jurors hearing the case and the
evidence presented to them, notwithstanding the prosecutor’s objectionable
comment. Wells cannot complain now that
the chosen strategy constituted ineffective assistance. See
Strickland,
466 U.S. at 690.
¶26 Moreover,
the prosecutor’s statement that “Mercado didn’t walk in the door” constituted
harmless error. See State v. Delgado, 2002 WI App 38, ¶¶14–18, 250 Wis. 2d
689, 701, 641 N.W.2d 490, 496 (applying harmless error analysis to prosecutor’s
arguably improper closing argument). The
remark was vague and ambiguous. As the
State observes, “the jury wouldn’t necessarily equate the statement ... with a
comment on Wells’ failure to call Mercado as a witness.”
¶27 An
error is harmless in a criminal case if no reasonable possibility exists that
the error contributed to the conviction. State v. Dyess, 124 Wis. 2d 525,
543, 370 N.W.2d 222, 231–232 (1985). The
question is one of law for our de novo
review. See State v. Harrell,
2008 WI App 37, ¶37, 308 Wis. 2d 166, 187, 747 N.W.2d 770, 780. Our focus is on whether the error “‘undermines
confidence in the outcome’” of the proceeding.
See Dyess, 124 Wis. 2d at 545, 370 N.W.2d at 232 (citation and
one set of brackets omitted).
Where the error affects rights of constitutional dimension or where the verdict is only weakly supported by the record, the reviewing court’s confidence in the reliability of the proceeding may be undermined more easily than where the error was peripheral or the verdict is strongly supported by evidence untainted by error.
Ibid.
¶28 Here,
the evidence against Wells was substantial.
People who knew him recognized him at the scene. They identified him as the shooter at
trial. He confessed. By contrast, the prosecutor’s challenged
remark was brief and its import unclear.
Additionally, the trial court correctly instructed the jurors that the
lawyers’ arguments “are not evidence,” and that the jurors should “decide upon
the verdict according to the evidence.” See Wis
JI—Criminal 160. We presume that
jurors follow the trial court’s instructions.
See Adams, 221 Wis. 2d
at 12, 584 N.W.2d at 700. In light of
the instructions to the jury, the opacity of the prosecutor’s remark, and the
evidence presented, no reasonable possibility exists that the remark
“contributed to the conviction.” See Dyess,
124 Wis. 2d at 543, 370 N.W.2d at 231–232.
The prosecutor’s remark was harmless here.
¶29 A
harmless error does not warrant a mistrial. See Adams,
221 Wis. 2d at 17, 584 N.W.2d at 702. Because the trial court would not have granted
a mistrial to cure a harmless error, the trial lawyers’ decision to forego such
a request was not prejudicial within the meaning of Strickland. Accordingly, Wells does not
demonstrate that his postconviction lawyer was ineffective for failing to
challenge his trial lawyers’ effectiveness on this basis. See Ziebart, 2003 WI App 258, ¶15, 268
Wis. 2d at 480, 673 N.W.2d at 375.
For all of these reasons, we affirm.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] One of the witnesses testified by videotaped deposition.
[2] We refer to the circuit court to identify the judge that presided over the postconviction proceedings underlying this appeal. We refer to the trial court to identify the judge that presided over the pretrial and trial proceedings.
[3] The State appears to concede that Wells acted during the trial proceedings to preserve his claim of prosecutorial misconduct and could have pursued the claim in a postconviction motion under Wis. Stat. § 974.02. We assume without deciding that the State’s implied concession is warranted.
[4] The court reporter placed a capital letter “Q” before the portion of the witness’s answer that follows “yes sir.” Neither party suggests that the statement “that is why I took a lie detector test” was part of a question posed to the witness. The “Q” appears to be a scrivener’s error.
[5] We note that, although Wisconsin law bars testimony about the result of a lie detector test, our law allows testimony about such tests in some circumstances. See State v. Shomberg, 2006 WI 9, ¶¶38–41, 288 Wis. 2d 1, 30–32, 709 N.W.2d 370, 384–385. Thus, a reference to a lie detector test is not, ipso facto, an error. A variety of considerations, however, attend the admissibility of such references. See ibid. We therefore assume without deciding that the testimony about a lie detector test in this case was objectionable.
[6] Wells asserts that his trial lawyers’ decision not to seek a mistrial is invalid because the decision rests solely with the defendant. He offers no discussion of this contention and supports his theory only with a citation to State v. Washington, 142 Wis. 2d 630, 419 N.W.2d 275 (Ct. App. 1987). In that case, the defendant argued on appeal that whether to accept or reject a mistrial is a tactical decision resting solely with the lawyer. Id., 142 Wis. 2d at 633–634, 419 N.W.2d at 276–277. We declined to address the issue, applying both waiver and estoppel. See id., 142 Wis. 2d at 635, 419 N.W.2d at 277. Washington does not suggest, let alone hold, that the decision to seek a mistrial is a fundamental decision that rests with the defendant alone. In the absence of cited authority and a developed analysis supporting a position, we will not consider a litigant’s contention. See State v. Lock, 2012 WI App 99, ¶58, 344 Wis. 2d 166, 195, 823 N.W.2d 378, 392. Accordingly, we do not address this issue further.
[7] Wells does not argue that his trial lawyers should have asked for any remedy other than a mistrial.