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COURT OF APPEALS DECISION DATED AND RELEASED September 26, 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. 95-2805-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SERSHAWN C. NICHOLSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Dane County: JACK F. AULIK, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Sershawn C. Nicholson pled guilty to possession of a
controlled substance (cocaine base) with intent to deliver. Prior to Nicholson's plea, the trial court
denied his motion to suppress because Nicholson did not have a reasonable
expectation of privacy in the premises from which the evidence was seized.
On appeal, Nicholson
argues that he received ineffective assistance of counsel at the suppression
hearing. At a Machner[1]
hearing, Nicholson presented the evidence that he felt should have been
introduced at the suppression hearing.
Because that evidence does not support a finding that Nicholson had a
reasonable expectation of privacy in the premises, he has not established
prejudice. Therefore, we affirm the
judgment of conviction and postconviction order.
FACTS
On September 9, 1994,
police conducted a "knock and talk" raid at a Madison apartment that
they suspected was being used for drug trafficking. Nicholson was in the apartment and had several baggies of cocaine
base on or near his person. Nicholson
told a detective that he had entered the apartment shortly before police
arrived to use the telephone. Nicholson
told police that he had been in the apartment on other occasions to use the
telephone or bathroom.
The apartment was leased
to Sherry Kraus and Marvin Hill. At the
suppression hearing, a detective testified that Kraus had told her that
uninvited persons had been using the apartment to sell drugs. At the postconviction hearing, however, both
Kraus and Hill testified that Nicholson had asked and was given permission to
use the telephone that evening. Hill
also testified that on other occasions, Nicholson "would always ask to
come in. He's never just barged in or
anything like that or opened the door and walked in or anything like that. He's always knocked and asked permission to
come in."
INEFFECTIVE ASSISTANCE OF COUNSEL
A defendant claiming
denial of the effective assistance of counsel must establish both that
counsel's performance was deficient and that the defendant was prejudiced by
the deficient performance. State
v. Teynor, 141 Wis.2d 187, 209, 414 N.W.2d 76, 84 (Ct. App. 1987). Whether a deficient performance was
prejudicial to the defendant is question of law. Id. at 210, 414 N.W.2d at 84. Prejudice is shown when there is a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome." State v.
Harvey, 139 Wis.2d 353, 375, 407 N.W.2d 235, 245 (1987) (quoting Strickland
v. Washington, 466 U.S. 668, 694 (1984)).
Nicholson contends that
his trial counsel was ineffective for not calling Kraus and Hill to testify at
the suppression hearing. Underlying the
contention is Nicholson's belief that their testimony that he was in the
apartment with their permission would have led the court to conclude that he
had a reasonable expectation of privacy in the premises, and thus could
challenge the subsequent search and seizure.
A person has a
reasonable or legitimate expectation of privacy when (1) the individual
has "exhibited an actual (subjective) expectation of privacy" and
(2) the "expectation of privacy is legitimate or justifiable in that
it is one that society is willing to recognize as reasonable." State v. West, 185 Wis.2d 68,
89, 517 N.W.2d 482, 489, cert. denied, 115 S. Ct. 375 (1994). Factors relevant to the determination of
whether society is willing to recognize an expectation of privacy as reasonable
include:
[w]hether
one has a property interest in the premises, whether one was legitimately on
the premises, whether one has complete dominion and control and the right to
exclude others, whether one took precautions those seeking privacy take,
whether one put the property to some private use, and whether the privacy claim
is consistent with historical notions of privacy.
Id. at
90, 517 N.W.2d at 490.
Nicholson satisfies none
of those factors. Although Nicholson
arguably was in the apartment with permission, he had no property interest in
the apartment or dominion and control over the apartment. Nicholson's presence in the apartment was
temporary and transient—he was there merely to use the telephone. Nicholson's claimed expectation of privacy
under these circumstances borders on the absurd.
Nicholson relies on Minnesota
v. Olson, 495 U.S. 91 (1990), in which the Supreme Court held that an
overnight guest had a reasonable expectation of privacy in the premises. Id. at 99-100. However, nothing in Olson
suggests that an acquaintance who makes an occasional telephone call in the
premises would have a similar reasonable expectation of privacy. Nicholson's reliance on Olson
is misplaced.
We conclude that
Nicholson was not prejudiced by his counsel's performance at the suppression
hearing. Even if counsel had introduced
evidence that Nicholson was in the apartment with the lessees' permission, the
result of the hearing would not have been different. Therefore, Nicholson's claim of ineffective assistance of counsel
fails. See State v.
Simpson, 185 Wis.2d 772, 784, 519 N.W.2d 662, 666 (Ct. App. 1994)
(counsel is not ineffective for not pursuing a suppression motion that would
have been denied).
By the Court.—Judgment
and order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.