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
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No. 95-3101-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Yolanda McClinton,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
VICTOR MANIAN, Judge. Reversed
and cause remanded with directions.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. A jury found Yolanda McClinton guilty of
first-degree reckless injury while using a dangerous weapon. After a hearing, the trial court denied a
post-conviction motion that raised ineffective assistance of counsel. McClinton contends that trial counsel was
ineffective because he did not request a jury instruction on the lesser
included offense of second-degree reckless injury while using a dangerous
weapon. We conclude that McClinton's
trial counsel failed to provide effective assistance of counsel. Accordingly, we reverse the order denying
the post-conviction motion. The case is
remanded to the circuit court with directions to enter an order vacating the
judgment of conviction and granting McClinton a new trial.
The criminal charges
arose out of an altercation between McClinton and Stephanie Christian n/k/a Stephanie
Christian-Lobley. As a result of the
incident, McClinton shot Christian-Lobley in the chest at close range. Both women had been romantically involved
with Leotha Lobley, and each had an infant fathered by Lobley.
The night before the
shooting, McClinton and Lobley fought, and both left McClinton's
residence. When McClinton returned the
following morning, she discovered that her residence had been burglarized. She told the police that Lobley was
responsible. She testified that she
moved from the residence and purchased a handgun for protection because she was
afraid of Lobley.
At the time of the
shooting, McClinton and five other individuals were taking the last of her
belongings to her new residence.
McClinton stopped at Christian-Lobley's residence because she saw a car
Lobley drove. McClinton testified that
Lobley had repeatedly paged her during the day, and with the others present,
she believed that she could safely talk with him. McClinton went to the door accompanied by her brother James. Lobley was not there, and an argument ensued
between McClinton and Christian-Lobley.
When McClinton left the porch, Christian-Lobley followed her. At the front gate, Christian-Lobley hit
McClinton. They struggled briefly and
moved into the street where Christian-Lobley grabbed McClinton from
behind. Both McClinton and
Christian-Lobley testified that McClinton removed a gun from her waist and
reached behind her with the weapon. The
gun discharged, and a bullet struck Christian-Lobley in the chest. Christian-Lobley then turned and was
returning to the residence when McClinton fired a second bullet, which did not
hit anyone. McClinton fled the scene.
At the trial, McClinton
testified about the confrontation and the shooting. According to her testimony, Christian-Lobley denied having
McClinton's things and started arguing.
McClinton said that she was not there to argue with Christian-Lobley and
that she walked away. Christian-Lobley
continued to argue and call McClinton names.
McClinton admitted talking loudly, but said that she did not call
Christian-Lobley names or "disrespect" her. McClinton testified that she heard someone say, "I'm going
to kill this bitch" before Christian-Lobley attacked her from behind. After a few seconds of struggle, McClinton
broke free and went out the gate. When
McClinton was almost to the street, Christian-Lobley again attacked McClinton
from behind. McClinton testified that
Christian-Lobley had one hand around McClinton's throat and the other hand
holding one of McClinton's hands.
McClinton freed her hand, grabbed the handgun from her waist, and
reached behind her. The gun went off.
McClinton testified that
she felt threatened when Christian-Lobley started to argue and ask questions
and that she was in a state of shock when Christian-Lobley attacked her the
second time. She claimed that she
pulled the gun to get away. McClinton
testified that she had not handled a firearm before and that either of them
could have been shot. She wished she
could have fired the weapon into the air or the ground.
McClinton acknowledged
that she fired the second time although she denied being aware of doing so or
doing so intentionally. She denied that
she raised the gun and aimed at Christian-Lobley, and she thought the gun was fired
downward because her hand was down when she "woke up" from the dazed
state she was in after the gun went off the second time.
The closing arguments
and jury instruction conference were not reported. McClinton apparently argued that she acted in self-defense. The record indicates that the State had
requested an instruction on second-degree reckless injury but withdrew the
request when McClinton's attorney objected.
Trial counsel's objection to the lesser-included-offense instruction is
the basis of McClinton's claim of ineffective assistance of counsel.
The trial court held an
evidentiary hearing on the post-conviction motion. Trial counsel and McClinton testified. Trial counsel could not recall the details of the jury instruction
conference or his closing argument. The
outline for closing argument in his file indicated that self-defense was
argued. Counsel had no notes concerning
the lesser included offense issue or of any discussions with McClinton about
it. Counsel could not give a reason for
objecting to the instruction other than the hypothetical one of not wanting to
give the jury a middle ground. He could
not testify as to the difference between the two crimes. He testified that he understood self-defense
to require intentional use of force and that he did not believe the facts
adduced at trial supported the intent element.
He believed that the key issues at trial were the existence of a second
shot, the credibility of the various witnesses, and the various perceptions
regarding an intent to fire the gun.
McClinton testified that
she had twice discussed potential defenses with trial counsel. She believed that counsel would argue that
her conduct was only second-degree reckless injury. She claimed she was "heartbroken" when he did not mention
it during closing arguments.
The trial court found
that trial counsel made a tactical decision not to request the
lesser-included-offense instruction. In
this regard, the court stated, "The trial tactic as I recall it and as I
glean from what's submitted to the Court ... was that this wasn't really a
self-defense defense in the straight sense of the word. I think he was demonstrating or trying to
demonstrate that there was no utter disregard for life." The court then summarized the testimony that
supported this "modified self-defense" claim and again summarized the
claim as follows:
[T]he
defense as I recall in the argument was that there was a lack, there was no
proof that there was an utter disregard for human life because of the way the
event occurred and the injury was sustained, and even though it was
self-defense that was being claimed, it was not a real self-defense claim. Self-defense was to show that there was no
utter disregard for life, at least that was my impression.
That was the trial tactic .... It seems to me
that the entire defense was based on the fact that under the circumstances the
State could not show that there was an utter disregard for human life and that
was the basis of the defense, and with that element missing she would have been
acquitted rather than found guilty of a lesser included [offense].
The
trial court then concluded that under the circumstances and facts of the case,
the strategy satisfied the objective standard of reasonableness. The court also concluded that McClinton was
not prejudiced. It stated that
"under the circumstances the woman was shot, the bullet went all the way
through her body. She spent a great
deal of time in the hospital, and in my view the verdict would have, the result
would have been the same."
A defendant has a
constitutional right to effective assistance of counsel. State v. Ludwig, 124
Wis.2d 600, 606, 369 N.W.2d 722, 725 (1985).
Courts use a two-step process to determine whether an accused received
ineffective assistance of counsel. Id.
at 607, 369 N.W.2d at 725. First, the
defendant must show that his trial counsel's performance was deficient. Id. Second, the defendant must show that the deficient performance
prejudiced his defense. Id. The appropriate standard for measuring
counsel's performance is reasonableness, considering all of the
circumstances. State v.
Brooks, 124 Wis.2d 349, 352, 369 N.W.2d 183, 184 (Ct. App. 1985). An attorney is held to the quality of
representation provided by an ordinarily prudent lawyer who is skilled and
versed in criminal law and privately retained.
Id. The prejudice
component requires a showing that trial counsel's errors were so serious they
deprived the accused of a fair trial. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Prejudice exists if "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id.
at 694.
If the trial court makes
determinations of factual matters, they will be upheld unless they are clearly
erroneous. State v. Pitsch,
124 Wis.2d 628, 634, 369 N.W.2d 711, 714 (1985). The questions of whether counsel's performance was deficient,
i.e. unreasonable under the facts of the case, and whether the deficiency was
prejudicial to the defendant are questions of law that this court decides
independently. Id. at
634, 369 N.W.2d at 715; Strickland, 466 U.S. at 690. It is presumed, however, that counsel
rendered adequate assistance; therefore, judicial scrutiny of counsel's actions
is highly deferential. Id.
at 637, 369 N.W.2d at 716. A
court must not second-guess counsel's considered selection of trial tactics or
the exercise of his or her professional judgment. State v. Felton, 110 Wis.2d 485, 502,
329 N.W.2d 161, 169 (1983). An
appellate court will second-guess counsel, however, when the trial tactics are
irrational or based on caprice rather than judgment. Id. at 503, 329 N.W.2d at 169.
The issue in this case
is whether counsel provided ineffective assistance by not seeking submission of
a lesser included offense to the jury, and we begin by determining if
submission of the offense was appropriate.
A lesser included offense is one in which the statutorily defined
elements of the lesser offense are included within the statutory elements of
the greater crime, and no additional element or fact is necessary to prove the
lesser offense. State v.
Carrington, 134 Wis.2d 260, 265, 397 N.W.2d 484, 486 (1986).
Here, the State does not
dispute that second-degree reckless injury is a lesser included offense of
first-degree reckless injury. Both
offenses require proof that a defendant recklessly caused great bodily harm to
another human being. Section 940.23(1)
& (2), Stats. First-degree reckless injury, however, also
requires proof that the defendant acted with "utter disregard for human
life." See
§ 940.23(1).
A lesser included
offense should be submitted only if a reasonable view of the evidence supports
a reasonable doubt on some element of the greater offense and guilt beyond a
reasonable doubt on all elements of the lesser offense. State v. Borrell, 167
Wis.2d 749, 779, 482 N.W.2d 883, 894 (1992).
Whether the trial court should have submitted the lesser included
offense is a question of law, which this court reviews de novo. Id. When reviewing the evidence to determine if a submission is
appropriate, the evidence is considered in the light most favorable to the
defendant. State v. Werlein,
136 Wis.2d 445, 457, 401 N.W.2d 848, 853 (Ct. App. 1987).
There was evidence that,
if believed by the jury, supported submitting the lesser included offense. Christian-Lobley was the aggressor. She followed McClinton and threw the first
punch. McClinton testified that she
heard someone say "I'm going to kill this bitch" before she was
hit. McClinton also testified that
after a very brief struggle, she was walking away when Christian-Lobley grabbed
her around the neck from behind.
McClinton denied that she intentionally fired the weapon. McClinton's testimony would reasonably support
an inference that McClinton displayed the gun out of fear and that the gun went
off in the struggle rather than as the result of a deliberate act. If the jury accepted McClinton's testimony
and the inferences that could be drawn from it, the jury could acquit McClinton
of the greater charge and convict her of the lesser one.
The State argues against
submission of the lesser included offense because Christian-Lobley was shot
while the gun was pointed at Christian-Lobley and in contact with her shirt. In the State's view, because McClinton aimed
a loaded gun at a vital part of Christian-Lobley's body at close range, it
would have been unreasonable for the jury to conclude that McClinton did not
act with utter disregard for human life.
See State v. Davis, 144 Wis.2d 852, 864, 425 N.W.2d
411, 416 (1988).
The cases cited by the
State are distinguishable. In Davis,
although the gun discharged during a struggle, the defendant initiated the
incident by deliberately pointing a loaded gun at the victim. Id. at 855, 425 N.W.2d at
412. Similarly, in State v.
Sarabia, 118 Wis.2d 655, 666, 348 N.W.2d 527, 533 (1984), the
non-exculpatory evidence showed that Sarabia deliberately fired a weapon
directly into a bar where people were present.
In State v. Melvin, 49 Wis.2d 246, 181 N.W.2d 490 (1970),
the defendant threatened an officer, pulled a gun, and fired directly at the
officer. Because there was no evidence
that Melvin had panicked, there was no evidence to permit a view that his
conduct did not evince little or no regard for human life. Id. at 253-54, 181 N.W.2d at
494. Finally, in State v. Wilson,
149 Wis.2d 878, 901-02, 440 N.W.2d 534, 543 (1989), there was no
non-exculpatory testimony to suggest that Wilson's conduct, while criminal, did
not satisfy all the elements of the greater offense.
When ruling on the
post-conviction motion, the trial court found that counsel made a tactical
decision to reject the lesser included offense. There is, however, no evidence to support this finding. Counsel testified that he could not remember
the issue and that he had no file notes concerning it. McClinton testified that counsel did not
advise her that the lesser included offense would not be pursued. On the basis of the testimony, the trial
court's finding was clearly erroneous.
Additionally, the facts
and circumstances of this case make such a tactical decision unreasonable. As the trial court observed, the
self-defense argument was not true self-defense. To invoke self-defense, a defendant must have reasonably believed
that he or she was in imminent danger of death or great bodily injury and that
the amount of force used was reasonable and not excessive. Section 939.48, Stats. McClinton felt
safe enough with family members and friends present to confront Lobley. It would be unreasonable for her to think
that they would not assist her in a conflict with Christian-Lobley when
Christian-Lobley was unarmed.
Additionally, McClinton did not testify that she intentionally shot
Christian-Lobley to protect herself.
McClinton's testimony suggests that the gun accidently discharged during
the struggle.
As the trial court
noted, McClinton's defense negated the element of "utter disregard for
human life." This defense was what
made submission of the lesser included offense appropriate. The lesser included offense does not require
the very element to be defeated by McClinton's defense. Without further explanation from counsel, we
cannot conclude that the all-or-nothing strategy was reasonable because it did
not take advantage of the evidence supporting McClinton's defense. We conclude that trial counsel's performance
was not reasonable, considering all the circumstances.
We also conclude that
McClinton was prejudiced by counsel's deficient performance. In its decision on the post-conviction
motion, the trial court concluded that there was no prejudice because
Christian-Lobley was the victim of a shooting.
By not pursuing an instruction on the lesser included offense, trial counsel
left the jury in the position of convicting on the greater offense or
acquitting on the basis of a very weak self-defense claim. Prejudice occurs if the jury, believing
McClinton was guilty of some offense, found her guilty of the crime
charged rather than finding her not guilty.
See Keeble v. United States, 412 U.S. 205, 212-13
(1973). Thus, we conclude that the
order denying the post-conviction motion must be reversed. We remand the case to the trial court with
instructions to vacate the judgment of conviction and order a new trial.
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.