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COURT OF APPEALS DECISION DATED AND RELEASED February 27, 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. 95-2852-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH A. ALBRECHT,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: KITTY K. BRENNAN, Judge. Affirmed.
SULLIVAN,
J. Kenneth Albrecht appeals, on a guilty plea, from a judgment of
conviction for operating a motor vehicle while under the influence of an
intoxicant. He also appeals from an
order denying his motion for postconviction relief. On appeal, he argues that his trial counsel was ineffective for
not contesting the probable cause for the police to administer a breath
test. This court concludes that the
trial court properly determined that there was sufficient probable cause for
the police to request a breath test; accordingly, counsel's performance was not
ineffective. The judgment and order are
affirmed.[1]
I.
Background.
The following facts were
adduced at Albrecht's postconviction motion to withdraw his guilty plea based
on ineffective assistance of counsel.
Shortly after 2:00 a.m., City of Cudahy Police Officer Jeffrey Lamster
spotted Albrecht driving his automobile at speeds nearly twice the posted speed
limit of 25 m.p.h. Officer Lamster
followed Albrecht as he first tailgated and then passed an unmarked police car
on the right. Lamster then pulled Albrecht's
car to the side of the street. He
exited the squad car and approached Albrecht, who remained in his car, in order
to speak with him. Lamster testified
that although he did not smell alcohol, Albrecht's “eyes were a little
glassy.” Lamster then asked him to exit
the vehicle; Albrecht's movements in the car were slow. Albrecht admitted that he had consumed “a
couple of drinks” and that he was tired; he denied that he was drunk. Officer Lamster testified that Albrecht then
said, “Think about what [you]'re doing, I have a family, don't do this to me
....” From this conversation, Officer
Lamster believed Albrecht was under the influence of an intoxicant. He then asked Albrecht to recite the
alphabet, which the officer testified he completed without a mistake, and that
his speech was relatively clear.
Officer Lamster,
believing he had probable cause to arrest Albrecht for operating a motor
vehicle while under the influence of an intoxicant, asked another officer to
preform a preliminary breath test on Albrecht.
The test showed Albrecht had a .25 BAC.
Albrecht was arrested.
Albrecht's trial counsel
testified at the Machner[2]
hearing that she did not challenge the probable cause for the breath test
because, after reviewing the police reports and having conversations with
Albrecht, she concluded that such a motion was fruitless. She cited that Albrecht had been speeding,
this his eyes were glassy, that he begged the police to give him a break, and
that he admitted to the police he had been drinking.
The trial court denied
the motion, concluding that counsel's performance was not deficient. The trial court determined that Officer
Lamster had probable cause to ask the defendant to take a breath test. Accordingly, trial counsel would not have
succeeded in a suppression motion based on an alleged lack of probable cause.
II.
Analysis.
Strickland v. Washington, 466
U.S. 668, 687 (1984), the seminal case by which ineffective assistance of
counsel claims are adjudicated, articulates a two‑pronged test in
reviewing the reasonableness of an attorney's performance at trial. The first prong requires that the defendant
show that counsel's performance was deficient.
State v. Johnson, 126 Wis.2d 8, 10, 374 N.W.2d 637, 638
(Ct. App. 1985), rev'd on other grounds, 133 Wis.2d 207, 395 N.W.2d 176
(1986). That is, the defendant must
show that counsel's conduct was “`unreasonable and contrary to the actions of
an ordinarily prudent lawyer.'” Id.
at 11, 374 N.W.2d at 638 (citation omitted).
Judicial scrutiny of counsel's
performance must be highly deferential.
It is all too tempting for a defendant to secondguess counsel's
assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsel's defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was unreasonable.
Strickland, 466
U.S. at 689. Thus, because of the
difficulties in making such a post hoc evaluation, “the court should
recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgement.” Id. at 690.
The second prong
requires that the defendant show that the deficient performance was
prejudicial. Johnson, 126
Wis.2d at 10, 374 N.W.2d at 638. To be
considered prejudicial, 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”—i.e., “a probability sufficient to
undermine confidence in the outcome.” Strickland,
466 U.S. at 694. In reviewing the trial
court's decision, this court accepts its findings of fact, its “‘underlying
findings of what happened,’” unless they are clearly erroneous, while reviewing
“the ultimate determination of whether counsel's performance was deficient and
prejudicial” de novo. State
v. Johnson, 153 Wis.2d 121, 127‑28, 449 N.W.2d 845, 848
(1990). Further, if the defendant fails
to adequately show one prong, this court need not address the second. Strickland, 466 U.S. at 697.
The crux of Albrecht's
claim is whether the police had probable cause to request a preliminary breath
test. This court agrees with the trial
court that such probable cause did exist.
Probable cause is met
when “a reasonable officer would conclude, based upon the information in the
officer's possession, that the `defendant probably committed [the
offense].'” State v. Babbitt,
188 Wis.2d 349, 357, 525 N.W.2d 102, 105 (Ct. App. 1994) (citation
omitted). The trial court noted the
following factors to support its probable cause determination: (1) Albrecht's
speed at the particular time of night; (2) his tailgating; (3) his passing the
car on the right; (4) his rapid acceleration; (5) his dazed look; (6) his slow
movements in the car; (7) his glassy eyes; and, most importantly, (8) his
admission he had been drinking.
Taking the factors
together, a reasonable officer could determine that Albrecht was operating his
car while under the influence of an intoxicant. See State v. Seibel, 163 Wis.2d 164, 183,
471 N.W.2d 226, 235 (1991) (discussing indicia: erratic driving, belligerent
behavior); Babbitt, 188 Wis.2d at 357, 525 N.W.2d at 102 (glassy
eyes); State v. Sayles, 185 Wis.2d 673, 518 N.W.2d 325 (Ct. App.
1994) (admission of drinking; officer's experience).
Because this court
agrees that the officers had probable cause to ask for a breath test,
Albrecht's counsel was not deficient in her performance for failing to contest
this probable cause. Counsel's conduct
was not “`unreasonable and contrary to the actions of an ordinarily prudent
lawyer.'” Johnson, 126
Wis.2d at 11, 374 N.W.2d at 638 (citation omitted). Hence, this court need not address the prejudice prong of the Strickland
test.
In sum, Albrecht's trial
counsel did not provide ineffective assistance. Accordingly, the judgment and order are affirmed.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.