COURT OF APPEALS DECISION DATED AND RELEASED October 1, 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. 95-3048-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Antonio Manns,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DIANE S. SYKES, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER CURIAM. Antonio Manns appeals from the judgment of
conviction for attempt first-degree intentional homicide while armed and
first-degree reckless injury while armed, and from the trial court order
denying his postconviction motion for a new trial. He argues that trial counsel was ineffective and that the trial
court improperly decided his ineffective assistance of counsel claims without
holding an evidentiary hearing. He also
argues that the trial court erred in allowing “other crimes” evidence. We affirm.
I. Background
The facts relevant to
resolution of this appeal are not in dispute.
As summarized in the trial court's written decision denying Manns's
motion for a new trial:
Manns
went to visit the victim while armed with a loaded shotgun for purposes of
extracting money from her which she allegedly owed him. The victim testified that, while the
defendant was in her apartment with the gun, he sexually assaulted her
(although sexual assault was not charged in the case). Immediately after the assault, there was a
knock at the door. As the victim
attempted to go to the door to answer it, the defendant was directly behind her
with the gun pointed in her direction.
She never made it to the door.
The defendant discharged the shotgun, shooting the victim in the
back. The dispute was whether Manns
accidentally or recklessly pulled the trigger (as he claimed in his statement
to the police), or whether he purposely pulled the trigger with intent to kill
the victim. It was conceded at trial
that he did sho[o]t her in the back with the shotgun and caused her substantial
injury (she survived but is permanently paralyzed.) Manns'[s] defense was that he did not intend to kill the victim,
but that the shooting was an accidental or reckless act.
The State charged Manns
with attempt first-degree intentional homicide while armed (count one) and first-degree
reckless injury while armed (count two).
The trial court also granted the defense requests for lesser included
offense instructions: 1) on count
one—first and second-degree reckless endangering safety while armed; and 2) on
count two—second-degree reckless injury while armed. Based on the defense closing argument, however, the trial court
withdrew two of the three lesser included offense instructions—second-degree
reckless endangering safety while armed (count one), and second-degree reckless
injury while armed (count two). The
jury convicted Manns of the original charges in both counts.
II. Ineffective Assistance
of Counsel
Manns argues that trial
counsel was ineffective for failing to impeach the victim with her prior
convictions, and for presenting a closing argument asking the jury to convict
him of first-degree reckless endangering safety while armed (count one) and
first-degree reckless injury while armed (count two).
In order to prevail on a
claim of ineffective assistance, a defendant must establish both that counsel's
performance was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). If a
defendant fails to establish either deficient performance or prejudice, his
claim fails and, therefore, “[r]eview of the performance prong may be abandoned
‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of prejudice....’” State v. Moats,
156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990) (quoting Strickland,
466 U.S. at 697). Establishing
prejudice “requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at
687. A defendant must establish “a
reasonably probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
A. Prior Convictions
Manns argues that
counsel was ineffective for failing to impeach the victim with her criminal
convictions. The victim had been
convicted of prostitution in 1978 and shoplifting in 1982. When the victim testified, however, defense
counsel failed to impeach her with the convictions. Realizing that failure following her testimony, counsel attempted
to introduce certified copies of the two judgments of conviction. The trial court denied the request ruling
“it's too late now....[a]nd certainly the substance of those convictions could
not have come in in any event for impeachment purposes.”
Manns argues that “the credibility of the
victim was in issue and it was important to impeach her testimony.” He fails to acknowledge, however, that the
fact of two prior convictions, if allowed, would have been of minimal significance
in light of the substantial evidence bearing on the victim's credibility. Denying the postconviction motion, the trial
court explained:
[A]lthough Manns has arguably
demonstrated that counsel was deficient in his performance by failing to at
least attempt to question the victim about her prior convictions (it is not
certain that he would have been given permission to impeach with these
convictions, given their age), he is simply unable to establish that his case
was prejudiced by the omission....
....
Manns'[s] trial counsel did, in fact, present
the jurors with very unfavorable evidence with regard to [the victim] in the
form of testimony offered by [the victim's neighbor]. [The neighbor] resided above [the victim] and described an array
of seamy behavior on the part of [the victim], including “countless” men going
to and from the victim's apartment implying that the victim prostituted herself
on a regular basis; drug use by the victim; and the victim's home resembling a
filthy pig sty. During this testimony,
the jurors were unequivocally left with the impression that [the victim]
engaged in prostitution and drug use and that [she] had possibly lied about her
involvement with each of those vices when she testified earlier that she never
prostituted herself and never used drugs.
In light of this testimony relating to [the victim's] allegedly seedy
life style, I find that Manns'[s] case was not prejudiced by counsel's failure
to question the victim about her two convictions, which occurred seventeen and thirteen
years ago.
We
agree and, therefore, conclude that Manns has failed to establish that he was
prejudiced by counsel's failure to impeach the victim with her criminal
convictions.
B. Closing Argument
Manns next argues that
counsel was ineffective when he “inexplicably argued to the jury that the
defendant should be convicted” of first-degree reckless endangering while armed
(count one) and first-degree reckless injury while armed (count two). Manns contends that counsel's argument “[i]n
essence,... without consultation with the defendant, admitted the defendant's
guilt to CT 2” and, further, caused the trial court to withdraw the
instructions on a second degree option on each count. In closing argument, trial counsel argued, in part:
As far a[s] the defense is concerned, you
can disregard the not guilty as far as the reckless injury is concerned. I think the State clearly has proven beyond
a reasonable doubt that Antonio Manns, through his stupidity, his recklessness,
committed a first degree reckless injury.
There's no question she's badly injured. There's no question that he was walking around with a loaded
shotgun that he didn't know how to handle.
He's not stupid by nature. At
least he knows how to read and write.
He's got to know that shotguns are dangerous. He was aware that pointing a gun constitutes a danger to someone
when you don't know what you're doing with the gun, and certainly the State has
proven that this conduct when fooling around with this gun while it was pointed
at her back, even if he doesn't mean to kill her, even if he pulls the trigger
by accident 'cause he's trying to cradle it or hold it or takes the trigger
instead of the trigger guard or however it may have happened, if he is that
careless with a gun, he has shown utter disregard for her life.
As
far as we're concerned, on the first degree reckless injury charge, the State
has proven their case and you have a right to find him guilty and I think you
should.
On
the attempted first degree intentional homicide,... the State ... has not
proven that ... when he put his finger on the trigger, that he had in his mind
that he either wanted to kill her or he knew the gun was pointed at her when
his finger was on the trigger and he knew there was a substantial certainty that
pulling the trigger would almost certainly cause her death.
....
...
[O]ne of the lesser offenses is first degree reckless endangering .... There's no question I think that the State
has proven that he ... committed a first degree endangering safety for many of
the reason[s] that he's guilty of the first degree reckless injury .... [A]nd I think the State has proven its case
on the question of a first degree endangering safety.
....
I
ask you to return the two verdicts I've requested. As I said, we agree the State has proven beyond a reasonable
doubt two crimes of first degree reckless injury, first degree endangering
safety while armed. She failed to prove
their case on the attempted homicide. I
ask you to acquit him on those charges.
Antonio
Manns committed ... two crimes on that day.
He has no business walking out of here a free man. He should be held accountable for what he
did and he should not be held accountable and convicted of something the State
failed to prove because of the severity of the injury to her. I ask you to hold him accountable for what
he did. No more and no less.
I ask you to find him guilty of first degree
reckless injury while armed and first degree endangering safety while armed.
Following
the defense closing argument, the trial court immediately held an
off-the-record side bar conference and then advised the jury that "based
on what I have just heard [defense counsel's] closing argument to be, I'm
withdrawing the second degree reckless injury and the second degree recklessly
endangering safety verdict forms" and withdrawing the instructions on
those offenses.
Manns explains that, on
each count, first and second-degree reckless conduct is distinguished by
whether a defendant's conduct is “under circumstances which show utter
disregard for human life,” and by substantial differences in penalties. Thus, Manns maintains, he was prejudiced by
his counsel's argument that effectively denied the jury the opportunity to
convict him of lesser offenses carrying substantially lesser penalties. Denying Manns's postconviction motion, the
trial court provided a thoughtful assessment that, while not coinciding exactly
with our own, provides helpful analysis.
The trial court wrote:
[Manns's]
argument fails for two reasons.
Manns'[s] own statement to the police basically constituted an admission
that his conduct was criminally reckless, resulting in the substantial
endangerment of and serious injury to the victim. It is clear that Manns'[s] trial counsel's strategy during
closing argument -- consistent with Manns'[s] statement to the police -- was to
admit to behavior consistent with first degree reckless injury in count two so
that the jury could more readily return a verdict of first degree recklessly
endangering safety in count one rather than attempt first degree intentional
homicide, which carried a substantially greater penalty. Consequently, counsel argued the merits of
count two first, conceding that Manns acted recklessly and stupidly, “walking
around with a loaded shotgun that he didn't know how to handle”, and arguing
that this “macho man” mentality caused him to discharge the gun, hitting the
victim in the back and causing her very serious injury. He then continued to argue that, consistent
with this behavior, Manns likewise recklessly endangered [the victim's]
safety, as opposed to intentionally attempting to kill her.
You
can find him guilty of first degree reckless injury, members of the jury, and
still conclude that it was an accidental shooting, that he didn't intend to
kill her, that the gun discharged by accident because he wasn't paying
attention to what he was doing. Those
are not mutually exclusive. It is
consistent with an accident to find him guilty of first degree reckless injury
and first degree endangering safety.
This
type of strategy, under the circumstances of this case, does not constitute
deficient performance. To the contrary,
it is quite reasonable, given the strength of the evidence against the
defendant in this case.
Without an evidentiary
hearing to determine the basis for trial counsel's closing argument, we cannot
conclude that counsel's strategy was clear and reasonable. After all, defense counsel, the State, and
the trial court were satisfied that all the lesser included offense instructions
were appropriate. Why, then, would
counsel argue in a manner that effectively eliminated two of them? If the answer to that question is as the
trial court presumed, why did counsel request the instructions in the first
place?
Perhaps with such
questions in mind, the trial court also analyzed the prejudice prong. Denying Manns's postconviction motion, the
trial court wrote:
Assuming
arguendo, however, that counsel's position during closing argument was
not that which a reasonable attorney would have taken under similar circumstances,
I cannot find that the defendant's case was prejudiced, for the simple reason
that the jurors unanimously concluded that Manns was guilty as charged on both
counts, and so it is clear that they never would have reached the point of
considering any “second degree” lesser included offenses had they been argued
by counsel or available as possibilities.
....
Therefore, even though trial counsel may have
eliminated the possibility of submitting the “second degree” lesser included
offenses to the jury on each count (as originally intended), there was no
prejudice to the defense. The jury's
verdicts demonstrate unequivocally that lesser included offense options of
second degree recklessly endangering safety on count one and second degree
reckless injury on count two would not have been considered even had they been
presented and argued.
Although
our analysis differs somewhat, we appreciate, as did the trial court, that
under the unusual circumstances of this case, the jury's verdict on count one
guides the analysis.
In State v. Truax,
151 Wis.2d 354, 363-365, 444 N.W.2d 432, 436-437 (Ct. App. 1989), we explained
that, under certain circumstances, where a jury convicts on the original
charge, a defendant is not prejudiced by a failure to instruct on a second
lesser included offense. In such a
case, the jury has had the chance to consider the original and first lesser
included offenses. The jury would not
have considered the second lesser included offense unless it had not been
satisfied of the defendant's guilt on the original charge.
On count one of this
case, Truax controls. The
jury considered the original charge of attempt first-degree intentional
homicide while armed and the lesser offense of first-degree reckless
endangering while armed. Counsel's
argument resulting in the withdrawal of the second lesser included
offense of second-degree reckless endangering while armed was not prejudicial
because the jury's verdict establishes that the jury never would have
considered that second lesser included offense.
The analysis of count
two extends logically from the verdict on count one. In count two we do not have a pure Truax situation
because the first and only lesser included offense instruction was
withdrawn. As the State argues,
however:
On
count 1, the jury found that the defendant attempted to kill the victim. Given this verdict, it is not reasonably
probable that they would have returned a verdict of second-degree reckless on
count 2 if offered that opportunity.
Although the [trial] court did not emphasize it, the fact that both
counts derive from the same conduct is fundamental to its ruling. The jury could not logically convict the
defendant of attempting to kill [the victim] by shooting her and then pass over
the first-degree reckless injury and convict on the lesser included of second
degree reckless for [the] same act when deciding count 2. Although juries have been known to return
inconsistent verdicts, in judging prejudice and the likelihood of a different
outcome, a defendant has no entitlement to the luck of a lawless decision
maker.
We
agree. Overwhelming evidence in this
case provided the basis for the jury's verdict on count one. Given the jury's conclusion that Manns
attempted first-degree intentional homicide while armed, there is no
reasonable probability that a defense closing argument preserving the lesser
included offense option of second-degree reckless injury while armed
would have produced a different result.
C. Evidentiary Hearing
Manns also argues that
the trial court erred in resolving his ineffective assistance claims without
holding an evidentiary hearing. When a
defendant alleges ineffective assistance of counsel, an evidentiary hearing
often is required to resolve issues that turn on material disputed facts. State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979).
Where, however, “the record conclusively demonstrates that the defendant
is not entitled to relief, the trial court may in the exercise of its legal
discretion deny the motion without a hearing.”
Nelson v. State, 54 Wis.2d 489, 497-498, 195 N.W.2d 629,
633 (1972); see State v. Bentley, 201 Wis.2d 303, 309-311,
548 N.W.2d 50, 53 (1996). In this case,
although factual uncertainty remains regarding counsel's alleged deficient performance,
no uncertainty attends the prejudice prong.
The record is clear and, accordingly, the trial court properly denied
Mann's motion without an evidentiary hearing.
III. “Other Crimes” Evidence
Finally, Manns argues
that the trial court erred in allowing “other crimes” evidence of his alleged
sexual assault of the victim immediately preceding the shooting.
Initially, the trial
court granted the defense motion in limine to exclude the victim's
testimony that Manns sexually assaulted her.
However, when the prosecutor offered a more detailed account of the
victim's anticipated testimony, the trial court explained:
[T]he jury is going to have to make a
credibility decision. They are going to
have to decide which story, the defendant's or the victim's, is more credible
and which one hangs together better and that this provides the context for the
defendant's being there in the first place and for what occurred and helps the
state's case in that regard because it helps round out the victim's version of
this whole incident, and if the victim is forced to leave it out, then the
story doesn't make any sense because he's just there for no apparent reason and
they find themselves in the bedroom for no apparent reason. They find themselves in the hallway for no
apparent reason ....
....
... [F]or the jury to make an appropriate
determination of who is telling the truth here and how this actually happened,
they are going to have to know the entirety of the victim's story and that the
prejudice can be eliminated or minimized by a curative instruction.
Thus,
the trial court allowed the testimony and instructed the jury “regarding other
conduct of the defendant for which the defendant is not on trial” that should
be considered “only as it relates to the issues of motive, opportunity, intent,
preparation or plan, knowledge, identity and sense of mistake or accident.”
We will not reverse a
trial court's decision to admit evidence absent an erroneous exercise of
discretion. See State v.
Parr, 182 Wis.2d 349, 360, 513 N.W.2d 647, 650 (Ct. App. 1994). To decide whether “other crimes” evidence is
admissible, a trial court first determines whether the evidence falls within
any exception under § 904.04(2), Stats.,
and, if it does, the trial court then determines “whether the evidence is more
prejudicial than probative.” State
v. Shillcutt, 116 Wis.2d 227, 235, 341 N.W.2d 716, 719 (Ct. App. 1983),
aff'd, 119 Wis.2d 788, 350 N.W.2d 686 (1984).
“[A]n ‘accepted basis
for the admissibility of evidence of other crimes arises when such evidence
“furnishes part of the context of the crime” or is necessary to a “full
presentation” of the case....’” Id.
at 236, 341 N.W.2d at 720 (citations omitted).
A trial court may weigh factors including the “‘nearness in time, place,
and circumstances of the alleged crime'” to the incident involved in the “other
crimes” evidence. Sanford v.
State, 76 Wis.2d 72, 81, 250 N.W.2d 348, 352 (1977).
In this case the alleged
sexual assault and the shooting involved the same time, place, and
circumstances. Testimony about the
alleged sexual assault offered contextual information relevant to the shooting
and the victim's credibility. The trial
court considered the facts and applied the proper standards. We see no erroneous exercise of discretion.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)(4), Stats.