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COURT OF APPEALS DECISION DATED AND RELEASED April 30, 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. 95-2685-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL DAVIS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Michael Davis appeals
from a judgment of conviction for possession of a firearm by a felon, for which
he was sentenced to two years imprisonment.
Davis' appellate counsel has filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738
(1967). Davis received a copy of the
report and was advised of his right to file a response. He has elected not to do so. Upon consideration of the report and an
independent review of the record, we conclude that there is no arguable merit
to any issue that could be raised on appeal.
Therefore, we affirm the judgment of conviction and relieve Attorney
Brian Findley of further representing Davis in this matter.
The no merit report
carefully addresses a number of possible issues on appeal. It first discusses the sufficiency of the
evidence. An appellate court may not
reverse a conviction unless the evidence, viewed most favorably to the state
and the conviction, is so insufficient in probative value and force that it can
be said as a matter of law that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt.
Here, the police officer's testimony concerning Davis and his
distinctive jacket negates any sufficiency challenge of arguable merit.
Next, the no merit
report addresses a possible argument concerning ineffective assistance of trial
counsel. Our reading of the record
discloses no basis for an ineffective assistance claim. Further, nothing in the record supports
Davis' apparent claim that trial counsel should have investigated more deeply
than he did.
Third, the report
discusses the propriety of the court's restricting Davis' cross-examination of
the police officer at the preliminary hearing.
We are unconvinced that such restriction would provide any basis for an
issue of arguable merit on appeal.
Counsel may be prohibited from cross-examining a witness with questions
aimed at credibility and general trustworthiness. See State v. Russo, 101 Wis.2d 206, 214, 303
N.W.2d 846, 850 (Ct. App. 1981). As the
circuit court ruled in Davis' motion for a new preliminary hearing,[1]
the line of questioning pursued at the preliminary hearing strayed into
discovery, which is impermissible. See
State ex rel. Huser v. Rasmussen, 84 Wis.2d 600, 614-15, 267
N.W.2d 285, 292‑93 (1978). We
conclude that no issue of arguable merit could arise on this point.
Fourth, the no merit
report addresses part of Davis' testimony excluded as hearsay. We are persuaded that the statement was
neither admissible nor relevant.
Finally, the report
addresses the severity of Davis' sentence.
The circuit court properly addressed the primary factors. See State v. Harris,
119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984). Given Davis' substantial prior record, the circuit court cannot
be said to have misused its discretion in imposing the maximum sentence.
Our review of the record
reveals no other possible issues of arguable merit. Accordingly, we affirm the judgment of conviction, and we relieve
Attorney Brian Findley of further representing Davis in this matter.
By the Court.—Judgment
affirmed.