|
COURT OF APPEALS DECISION DATED AND RELEASED May 21, 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. 95-2821-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DONNIE LEE LACY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: CHARLES F. KAHN, JR., Judge. Affirmed.
WEDEMEYER, P.J.[1] Donnie Lee Lacy appeals from a judgment of
conviction for six misdemeanor counts, including three counts of bail jumping,
and from an order denying postconviction relief.
Lacy claims he was
denied effective assistance of counsel under the Sixth Amendment of the United
States Constitution and article I, section 7 of the Wisconsin Constitution for
two reasons: trial counsel failed to move to dismiss the bail jumping charges
even though a stipulation relating to those charges was not read to the jury
until the jury instructions were given, and trial counsel failed to move to
dismiss the bail jumping charges at the conclusion of evidence on the grounds
that the stipulation of the parties concerning the bail conditions constituted
insufficient proof of Lacy's knowledge of the bail conditions.
Because Lacy's trial
counsel exercised reasonable trial strategy in not moving to dismiss the bail
jumping charges, and because Lacy was not prejudiced by his trial counsel's
alleged failure to move to dismiss the bail jumping charges for insufficient
evidence, this court affirms.
I. BACKGROUND
During 1993 Lacy was
arrested for allegedly committing five misdemeanors. The charges stemmed from three separate incidents and, as a
result, Lacy executed three separate personal recognizance bonds so that he
could be released on bail. It is
undisputed that a condition of the bonds was that he would not commit any
crimes. On February 10, 1994, Lacy was
arrested and charged with battery and, as a consequence, was also charged with
three counts of bail jumping. The consolidated
cases were tried March 3 through March 8, 1995.
Prior to taking
testimony, the trial court attempted to obtain a written stipulation regarding
the bail bond violations. Lacy's
counsel agreed to stipulate that one of the conditions of the bail bonds was
that Lacy refrain from committing any crimes.
However, he would not stipulate that Lacy had knowledge of this
condition. Although the parties agreed
to the conditions of bail, there was disagreement as to how the stipulation
would be worded. As a result, the trial
court assumed the task of drafting a stipulation to be approved by both
parties, which would be read to the jury before the State rested its case. The trial court also took judicial notice of
the bail bond documents.
During its opening
argument, the State mentioned that a stipulation existed relating to the
conditions of the bail bonds, and that the jury would hear about it. The stipulation, however, was not made part
of the record during the State's case.
After the State rested, Lacy moved to dismiss the other charges but did
not move to dismiss the bail jumping counts.
Included in the trial
court's instructions to the jury was the stipulation that Lacy, while out on
bond, was not to commit any new crimes.
Lacy's counsel did not object to the reading of the stipulation. After the instructions were read, Lacy's
counsel moved to dismiss the bail jumping charges essentially on the basis of
insufficiency of evidence. The trial
court denied the motion. The jury
convicted Lacy of disorderly conduct, two counts of battery and three counts of
bail jumping. Lacy's counsel moved for
judgment notwithstanding the verdict, arguing that the evidence of Lacy's
knowledge of the conditions of bail based on the stipulation that Lacy signed
bond documents, was insufficient. The
motion was denied. Next Lacy moved for
a new trial based on ineffective assistance of trial counsel. After a hearing, the trial court denied the
motion. Lacy now appeals.
II. DISCUSSION
A. Failure
to Move to Dismiss the Bail Jumping Charges.
Lacy claims first that
his trial counsel was ineffective when he failed to move to dismiss the bail
jumping charges after the State neglected to inform the jury of the stipulation
relating to those charges during its case.
He argues that since the stipulation was not entered into evidence,
there was no evidence properly before the jury upon which convictions could be
based. He further argues that, if his
trial counsel would have moved to dismiss, the trial court would have had to
dismiss the charges.
Standard of Review
There is a two-part test
for determining whether a criminal defendant's right to effective assistance of
counsel has been denied. First, the
defendant must show that counsel's performance was deficient, and second, the
defendant must show that the deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). Because deficient
performance and prejudice from that performance must both be shown by a
defendant to prevail on an ineffectiveness claim, failure to meet either test
is fatal to such a claim. Id. There is no set order of analysis in
deciding the claim. Id. The appropriate measure of attorney
performance is reasonableness, State v. Brooks, 124 Wis.2d 349,
352, 369 N.W.2d 183, 184 (Ct. App. 1985), considering all the
circumstances. Strickland
at 687-88. “A defendant is not entitled to the ideal, perfect defense or the
best defense but only to one which under all the facts gives him reasonably
effective representation.” State v.
Rock, 92 Wis.2d 554, 560, 285 N.W.2d 739, 742 (1979). Thus, a mere contention that defense counsel
should have conducted the defense differently does not establish that counsel
was ineffective. Id. The question is whether there is a basis in
reason for trial counsel's actions.
Analysis
Lacy has failed to
establish that his trial counsel's performance was deficient. At the Machner hearing, trial counsel, when
asked why he did not move to dismiss at the close of the State's case, offered
the following relevant explanation:
But
I have a recollection to the effect that I did catch that. That the stipulation
was never entered as an exhibit
formally prior to closing arguments.
And
I believe we were sitting at the same table you're at now, and I turned to
Donny [sic], and I said ... that we have -- we could object to it, but I
recommended to him that we don't without going into the reasons why.
And
my recollections as he [sic] said he was going to trust my judgment .... And here's the complicated reasons why I
thought it would not be a good idea to try to make that move.
In
the first place there was a stipulation between the parties that was worked out
by the judge. The judge actually
prepared the document that was the actual stipulation for me to stipulate to
and then to turn around and ... basically double cross the Court and the DA on
the stipulation.
I
wasn't sure if that was going to work.
I felt that I couldn't be positive that the judge would in fact grant my
motion to dismiss for lack of a formal motion by the DA to enter the
stipulation into evidence.
I
couldn't be certain that we would be successful, but I was relatively certain
that this would -- this being somewhat of a personal attack on the DA's ability
to conduct a trial ... would do nothing for the relationship between the
parties that was going on during this trial.
And
I felt ... it was part of my job to prepare for potential conviction in this
case and not do anything that might cause the DA to become reactionary.
....
And
I felt we needed to maintain a professional good rapport between the parties
... for a couple of reasons. One, Donny
[sic] could have been convicted of the other charges and sometime we were going
to have to deal with that very same DA on potential recommendations after the
conviction.
All
during the course of this trial ... Mr. Griffin and I had off the record
discussions about what might come of the case afterward and even discussions
concerning settling the case in the middle of the trial.
And all during that time Mr. Griffin never took
a nasty attitude toward me or toward Mr. Lacy and although he didn't give me an
indication of what his eventual recommendation would be if he was convicted of
any charges, the clear impression I got is Mr. Griffin was not going to get
even so to speak for taking this case to trial.
....
Furthermore,
there were two other different open cases that were going to be going to trial
before this Court with Mr. Lacy....
And
during discussions of the case, we also discussed what was going to happen to
those two other different cases, and the impression ... was that we would be
giving very favorable settlements on those ... after our trial was over.
So
I was not only worrying about this trial, I was worrying about two other trials
....
....
And
for all those reasons, I believe I turned to Donny [sic] and told him about
this and said let's take a pass on this, and he went along with me.
....
As
it turned out, that was right because the two cases that I felt ... that they
had good cases on him. The District
Attorney on the date of sentencing moved to and the Court did move to dismiss
those two cases.
So in a sense, we were rewarded by not trying
to show up the DA.
From this review, it is
obvious trial counsel engaged in an exercise of professional judgment,
balancing the advantages versus the disadvantages of making a motion, and
weighed alternative courses of action in terms of how his professional action
would affect his client. State v.
Felton, 110 Wis.2d 485, 502, 329 N.W.2d 161, 169 (1983). He knew he had entered into a stipulation
that Lacy was out on bail relating to some other charges and, as a condition of
bail, Lacy was not to commit any other crimes.
All that remained was for the trial court to reduce the stipulation to
an acceptable form and read it to the jury.
In the meantime, the District Attorney, in his opening statement, told
the jury “... there's a stipulation in this case. You will hear about it,” and then told the jury basically the
contents of the stipulation. Trial
counsel recognized that neither the District Attorney nor the trial court had
officially entered the stipulation in the record, but strategically chose not
to move to dismiss on this basis because he felt objecting would not be
beneficial, and would be viewed as a violation of the commitment he had made to
enter into the stipulation. Trial
counsel also felt that making the motion under these circumstances would not
only have no positive impact on his client's case, but would actually have a
negative effect on the eventual sentencing consequences facing his client.
Additionally, the only
challenge counsel was asserting in regard to the bail jumping charges was that
Lacy lacked knowledge about the conditions of bail, which was not part of the
stipulation. Thus, this court cannot
conclude that counsel's stratagem was without well founded reason and good
lawyer common sense.
As additional support
for his ineffective assistance of counsel claim, Lacy points to his counsel's
failure to move for dismissal at the close of all evidence and his failure to
object to the reading of the stipulation when the trial court instructed the jury. Although these assertions were only briefly
alluded to and not developed or examined at the Machner hearing,
most of the reasons trial counsel gave for not moving to dismiss at the close
of the State's case apply here with equal persuasive force. The trial court inferentially found that
trial counsel had good reason not to breach the stipulation. It further found that the contents of the
stipulation were already in the record and, therefore, its actual reading to
the jury was a matter of administrative formality. This determination is supported by the fact noted earlier that
the court had taken judicial notice of the bail documents and their contents,
which was the essence of the formalized stipulation. This finding is not clearly erroneous and, therefore, this court
will not upset it. State v.
Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711, 714 (1985);
§ 805.17(2), Stats. Moreover, “[T]he conduct of a trial is
largely within the discretion of the trial court and its determinations will
not be disturbed unless the rights of the parties have been prejudiced.” Dutcher v. Phoenix Ins. Co.,
37 Wis.2d 591, 606, 155 N.W.2d 609, 617 (1968); § 906.11(1) Stats.
This court agrees with the trial court's conclusion that Lacy was not
prejudiced because all parties agreed to enter into the stipulation and under
the unique circumstances of this case, the actual timing of the stipulation's
introduction was left to the trial court.
B. Failure
to Dismiss for Insufficient Evidence.
Finally, Lacy claims,
assuming arguendo, that the stipulation was properly before the jury, he was
denied his right under both constitutions to effective assistance of counsel
because his counsel failed to move to dismiss on the grounds that the
stipulation in and of itself was insufficient proof of each count of bail
jumping.
Standard of Review
In addition to the
standards of review applied to Lucy's first claim of ineffective assistance of
counsel, a reviewing court is free to consider the prejudice component first in
the two-part test and need not deal with the performance component if the
defendant makes an insufficient showing of prejudice.
Analysis
Lacy has failed to show
that he was prejudiced by his counsel's claimed failure to move for dismissal
for lack of sufficient evidence. From a
procedural standpoint, after the jury was instructed, counsel did move to
dismiss the bail jumping charges. Admittedly, the form of the motion was less
than artful. Nevertheless, counsel
requested “[w]e ought to kick those three charges.” Then, referring to the activity that triggered the three charges,
exclaimed “my client at the time could not have intentionally tried to violate
his conditions of his release.” The
trial court summarily denied the motion.
This court deems the motion to have been substantively a motion to
dismiss for insufficient evidence.
After the jury returned
guilty verdicts on the three bail jumping charges, counsel moved for judgment
notwithstanding the verdicts. He argued
that the evidence of Lacy's knowledge of the conditions of bail, based on the
stipulation that he signed bail documents, was insufficient. In responding to the motion, the trial court
first denied the motion on the basis of waiver, but then considered it on the
merits. From a review of the record,
this court agrees that the trial court's analysis was correct. It noted that Lacy had signed a bail
document agreeing not to commit any new crimes as a condition of release. When this evidence is considered in a light
most favorable to conviction, this court cannot conclude that it is so
insufficient in probative value and force that no trier of fact acting
reasonably could be convinced beyond a reasonable doubt that “knowledge” of the
conditions had been proven. State v.
Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). Thus, any deficiency on the part of trial
counsel in the manner in which it posited motions to dismiss for insufficient
evidence was not prejudicial.
Accordingly, Lacy's ineffective assistance claim fails.
For the reasons stated,
this court affirms.
By
the Court.—Judgment and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.