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COURT OF APPEALS DECISION DATED AND RELEASED September 17, 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. 95-2787-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Defendant-Respondent,
v.
CLEOPHUS AMERSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Cleophus Amerson appeals from a judgment of
conviction after a jury found him guilty of two counts of first-degree sexual
assault of a child, contrary to § 948.02(1), Stats. He also
appeals from an order denying him postconviction relief. Amerson raises two issues for our
consideration: (1) whether the trial court erroneously exercised its
discretion when it denied his request for a new trial based on newly discovered
evidence; and (2) whether he was denied his constitutional right to
effective assistance of counsel.
Because the trial court did not erroneously exercise its discretion in
denying his motion for a new trial, and because the manner in which trial
counsel conducted Amerson's defense did not prejudice him, we affirm.
I. BACKGROUND
On March 8, 1994, a jury
convicted Amerson of two counts of first-degree sexual assault of
nine-year-old, Tawanda M. The two
assaults occurred in August 1993, and on December 20, 1993. The State presented its case through the
testimony of Tawanda, Denise M. (Tawanda's mother and Amerson's girlfriend),
medical experts, and investigating police personnel who interviewed
Tawanda. Amerson rested his case
without presenting any witnesses. He
claimed the sexual assault never occurred, arguing that Denise M. forced
Tawanda to make the false accusation because Amerson failed to buy drugs for Denise.
Post-trial,
but before sentencing, Amerson moved for a new trial alleging that Tawanda had
recanted her trial testimony accusing him of the sexual assaults and had
admitted that the assaults never occurred.
The State stipulated that a recantation had occurred and the matter was
adjourned to allow Amerson to present other corroborating evidence. At the hearing on May 9, 1994, Amerson
submitted an affidavit signed by Denise M., which averred that: (1) Tawanda
admitted that Amerson had not assaulted her, and (2) Tawanda had been
previously sexually assaulted when she was two years old, in Chicago by a Danny
Hamilton, which could explain the scarring to Tawanda's vaginal area. Denise also testified at the hearing
regarding the Chicago assault, explaining that Tawanda was treated at Mount
Sinai Hospital in Chicago.
The trial court allowed
Amerson to introduce the audio tape recording of Tawanda's recantation (that
Amerson never assaulted her), but did not permit Amerson's counsel to question
Tawanda. The State introduced into
evidence the affidavit of Val Chambers, a counselor in the Sexual Assault
Counseling Unit of the district attorney's office. The contents of that affidavit indicated that Chambers had talked
with Tawanda after the trial and, although Tawanda denied that Amerson
assaulted her in December, she explained that the injuries to her vaginal area
must have resulted from the summer incident when Amerson raped her in an
abandoned second floor residence.
Lastly, the State submitted into evidence the presentence report
prepared by Glenda Meeks, which contained Tawanda's recounting of both
incidents that formed the bases for the two charges.
The trial court denied
the motion stating “a recantation standing on its own without any type of corroboration
from any other newly discovered evidence is not a sufficient ground for any
type of post conviction relief.” The
trial court further concluded that the evidence presented was not
corroborative.
Subsequent to
sentencing, Amerson moved for postconviction relief, again claiming newly
discovered evidence and additionally alleging ineffective assistance of
counsel. After hearing additional
testimony on the newly discovered evidence claim, the trial court reaffirmed
its “lack of corroboration” holding and further concluded that Amerson was not
prejudiced by his trial counsel's performance.
Amerson now appeals.
II. DISCUSSION
A. Newly
Discovered Evidence.
Whether to grant a new
trial on grounds of newly discovered evidence is normally a discretionary
decision of the trial court. State v.
Boyce, 75 Wis.2d 452, 457, 249 N.W.2d 758, 760 (1977). For a movant to be successful in its
petition for a new trial, the evidence must meet the following conditions:
(1) The
evidence must have come to the moving party's knowledge after a trial;
(2) the moving party must not have been negligent in seeking to discover
it; (3) the evidence must be material to the issue; (4) the testimony
must not be merely cumulative to the testimony which was introduced at trial;
and (5) it must be reasonably probable that a different result would be
reached on a new trial.
State v.
Kimpel, 153 Wis.2d 697, 701-02, 451 N.W.2d 790, 792 (Ct. App.
1989). Moreover, an admission of a
witness that he or she committed perjury at trial is not grounds for a new
trial based upon newly discovered evidence unless the proposed facts by
testimony or affidavit are corroborated by other newly discovered
evidence. Zillmer v. State,
39 Wis.2d 607, 615-16, 159 N.W.2d 669, 673 (1968). We conclude that the trial court in the instant case did not
erroneously exercise its discretion when it denied Amerson's motion for a new
trial based on newly discovered evidence.
The trial court, in
rendering its decision, had the benefit of hearing and observing Tawanda and
Denise M. during the jury trial. Tawanda related how the two incidents took
place that gave rise to the two charges of sexual assault: the first occurring in August 1993, in a vacant
upstairs residence of a duplex and the second occurring on December 20, 1993,
in the parking lot near a Pick 'N Save food store. Denise M. testified as to the manner in which Tawanda reluctantly
informed her about the circumstances of the December assault. Among other State's witnesses, the trial
court heard the testimony of:
(1) Officer Ivory Britton, who also related information given to
him by Tawanda about the assault; (2) Detective William Stawicki, who also
related information given to him by Tawanda about both the August and December
assaults; and (3) Dr. Ellen Klandrud, who examined Tawanda the night of
the second incident.
At the first hearing on
the motion regarding newly discovered evidence, Denise M. testified in support
of a previously filed affidavit that Tawanda informed her that Amerson had not
assaulted her. In a second affidavit,
Denise M. claimed to have pressured Tawanda to assert the charges against
Amerson “for her own personal reasons” but then equivocated about this aspect
of her affidavit when cross-examined by the State. When questioned by the trial court about pressuring Tawanda into
fabricating the allegation, Denise M. denied that she had done so. In reference to the basis for the assault
charge of earlier vintage, she stated that Tawanda had been assaulted in
Chicago when she was two years old by a Danny Hamilton, and was treated at
Mount Sinai Hospital in Chicago following that incident.
State witness, Chambers,
by affidavit, stated that although Tawanda denied Amerson assaulted her in the
parking lot, Tawanda explained that any evidence of vaginal injury stemmed from
the August incident in the upstairs residence.
The presentence report was also received into evidence, which contained
Tawanda's statement recounting the two instances when Amerson assaulted her.
Post-sentencing, the
trial court again had the opportunity to consider additional evidence in
support of a renewed newly discovered evidence motion. It heard from Amerson's trial counsel who
affirmed that Tawanda had recanted about the December parking lot
incident. It also received into
evidence medical records from Mount Sinai relating to Tawanda's admission on
July 31, 1987, which indicated a damaged hymen and multiple fissures of
the rectal area. This was confirmed by
a letter from the district attorney's office that a Danny Hamilton had been
sentenced in the State of Illinois to three years of incarceration for this
sexual assault of Tawanda.
Amerson argues that the
affidavit and testimony of Denise M., the newly discovered medical records
of an 1987 incident, and the proffered testimony of an absent witness, supply
sufficient corroboration to warrant a new trial on the basis of newly
discovered evidence. We are not
persuaded.
In reviewing all the
evidence before it, the trial court necessarily employed its fact-finding role
to resolve conflicts in the testimony, assess credibility of the witnesses, and
assign degrees of weight to the individual pieces of evidence before it. State v. Poellinger, 153
Wis.2d 493, 506, 451 N.W.2d 752, 757 (1990). When the trial court reviewed the written and oral submissions
made by Denise M., taking into account Denise M.'s averment in her
affidavit of bringing pressure to bear on her daughter to change her testimony
and then vehemently denying such intention in open court, the fact finder had a
reasonable basis to discount her testimony and to conclude that
Denise M.'s testimony could not serve as the necessary corroboration
because it was not credible. In
contrast, the trial court noted the detail, consistency, and strength of
Tawanda's pre-trial and trial version of what happened on each occasion. There is a reasonable basis in the record
for the trial court to conclude:
“There's never been any evidence that Tawanda [M.] made the whole thing
up.”
The trial court also
rejected Amerson's assertion that the 1987 medical records from Chicago's Mount
Sinai Hospital corroborated Tawanda's recantation because it determined “they
do not offer any evidence that they would change the result of the trial.” Amerson reasons that part of Dr. Klandrud's
testimony pointed to older tears to the hymenal ring, which the State connected
to the August assault, when, in fact, the older tears could be explained by the
1987 medical records. This would be
consistent with Amerson's claim of innocence because the older injuries could
have been the injuries documented in 1987.
The record, however, contradicts Amerson's assertion and supports the
trial court's conclusion. Dr. Klandrud
testified that there were two old scars at the three and nine o'clock positions
on Tawanda's hymenal ring. The 1987
medical reports, however, do not note any tearing of the hymenal ring nor show
any tearing in the drawing contained in the report. Thus, the 1987 medical reports would not explain away the earlier
scars. Accordingly, the conclusion
reached by the trial court is firmly based.
Amerson also argues that
the testimony of missing witness Robert Amerson offered at the postconviction
hearing is other evidence which corroborates Tawanda's recantation. Specifically, he asserts that Robert's
testimony shows Tawanda originally denied to her mother that the defendant
assaulted her. He also testified he
heard Tawanda get a “whooping” when she originally said nothing had
happened. Again, the record belies
Amerson's assertions. The trial court
found from its review of the testimony that Robert never stated Tawanda denied
being sexually assaulted by Amerson, only that Tawanda stood silent when her
mother asked her what was wrong. Our
reading of Robert's testimony confirms the correctness of the trial court's
finding. Moreover, Robert's testimony
was known prior to trial and, therefore, not “newly discovered.” Thus, the trial court appropriately
concluded that Robert did not offer any new evidence that would change the
outcome of the trial and Robert's testimony cannot serve as the necessary
corroboration to Tawanda's recantation.
From this analysis, we conclude the trial court did not erroneously
exercise its discretion in denying Amerson's motion for a new trial because of
newly discovered evidence.[1]
B. Ineffective
Assistance.
Amerson's second claim
of error is that he was deprived of effective assistance of counsel. His claim is based on trial counsel's
failure to investigate the 1987 sexual assault that occurred in Chicago and his
failure to present testimony from Robert Amerson.
To show ineffective
assistance of counsel a defendant is required to prove both that his trial
counsel's performance was deficient and that the deficiency prejudiced his
defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Pitsch,
124 Wis.2d 628, 633, 369 N.W.2d 711, 714 (1985). “Unless a defendant makes both showings, it cannot be said that
the conviction ... resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland,
466 U.S. at 687. Both the performance
and the prejudice components are mixed questions of fact and law. Pitsch, 124 Wis.2d at 633-34,
369 N.W.2d at 714. The trial court's
findings of fact will not be disturbed unless clearly erroneous. Id. at 634, 369 N.W.2d at
714-15. The ultimate determination of
whether counsel's performance was deficient and prejudicial to the defense are
questions of law that this court reviews independently. Id. at
634, 369 N.W.2d at 715. Review of the
performance prong may be abandoned “if it is easier to dispose of an
ineffectiveness claim on the ground of lack of prejudice.” Strickland, 466 U.S. at
697. The burden is on the defendant
under the prejudice test to show that the errors committed by counsel were so
serious that they deprived him of a fair trial, a trial whose result is
reliable. Id. at
687. In other words, 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. at 694.
We shall first examine
Amerson's ineffective assistance claim based on trial counsel's failure to
investigate the 1987 assault. The trial
court concluded that trial counsel's performance was indeed deficient because
of his failure to investigate the prior assault. Nevertheless, it concluded the deficiency did not prejudice his
defense. The trial court did not err.
As set forth earlier in
this opinion, the trial court gave considerable weight to Tawanda's testimony
because of its original consistency regardless of who interviewed her. Additionally, it determined that the 1987
Mount Sinai medical reports would not have altered the result of the
trial. Again as noted earlier, since
the 1987 report makes no mention of the type of injury to the hymenal ring as
observed in Dr. Klandrud's report, the 1987 report is not even relevant. Thus,
there was no prejudice to Amerson for his trial counsel's failure to
investigate and obtain a report about the earlier incident.
Lastly, defendant claims
ineffective assistance of counsel for failure to call Robert Amerson as a
witness or ask for an adjournment for the same purpose. The trial court concluded that this omission
was neither deficient nor prejudicial.
We shall review this assertion of error only from the prejudicial prong
of the Strickland test. The trial court
concluded there was no prejudice as a result of Robert Amerson's non-appearance
because “Amerson's testimony did not significantly alter what occurred;
specifically, he never testified that Tawanda M[.] denied being sexually
assaulted by [the defendant].” The
record supports this finding by the trial court and provides a reasonable basis
for its conclusion that there was not a probability that a different result
would have occurred if an adjournment had been requested and Robert Amerson had
testified.[2]
For the reasons set
forth, we affirm.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Amerson also claims the trial court erred by denying Amerson's request to allow Tawanda to testify at the motion hearing. He failed to adequately develop this argument, however, and as a result, we are not obliged to address it. State v. Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct. App. 1992).