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COURT OF
APPEALS DECISION DATED AND
RELEASED July
18, 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. 95-3122-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD
R. BURCH,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Rock County: EDWIN C. DAHLBERG, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
PER
CURIAM. Richard R. Burch appeals from a
judgment of conviction for delivering less than ten grams of cocaine, as a
second offender, contrary to §§ 161.41 (1)(c) and 161.48, Stats., 1991-92, and from an order
denying his motions for postconviction relief.
The issues are: (1) whether
the trial court erred in concluding that Burch was not denied effective
assistance of counsel at trial; and (2) whether the trial court erred in
denying Burch's motion for a new trial on grounds of newly-discovered
evidence. We conclude that Burch's
counsel provided effective assistance and that the trial court did not err in
denying Burch's motion for a new trial.
We therefore affirm.
The
Rock County Metro Narcotics Unit, in cooperation with an informant, Anthony
Bates, made a controlled purchase of cocaine from Burch.[1] Bates was wearing a "wire" which
transmitted his conversations with Burch back to Narcotics Unit Officer Scott
Wasemiller so that Wasemiller could hear and record the conversations. Some months later, after Bates assisted the
Narcotics Unit with numerous controlled purchases, Burch was arrested for the
sale of cocaine to Bates.
At
trial, Bates testified that he had purchased drugs from Burch. In addition, Wasemiller testified about what
he heard via the "wire." The
jury found Burch guilty.
After
the conviction, Burch filed a motion for a new trial on the grounds of
newly-discovered evidence. The
newly-discovered evidence was an unsigned letter to "Randy/Bank"
offering to help "Randy/Bank" and "Rico" (Richard Burch) in
their cases if they paid him money.[2] Burch's trial counsel obtained the letter
from an assistant district attorney following the trial, but prior to
sentencing. The letter had originally
been sent to Randy Hughes, a defendant in another drug case, who turned the
letter over to his counsel, Attorney Daniel.
Bates did not testify at the hearing on the newly-discovered evidence,
but the trial court relied upon the testimony of Bates regarding the same
letter in another drug case. Bates
admitted in that case that he had someone write the letter for him. The trial court denied Burch's motion,
ruling that the evidence was merely cumulative to the testimony adduced by
Attorney Nott attacking the credibility of Bates, and that it would not change
the result of the trial.
Burch
also filed a postconviction motion alleging ineffective assistance of
counsel. After an evidentiary hearing
at which trial counsel testified, the court denied this motion. The court concluded that even if Burch's
trial counsel's performance was deficient, Burch had not been prejudiced.
In
evaluating whether a defendant has been deprived of the effective assistance of
trial counsel, this court applies the two-part test of Strickland v.
Washington, 466 U.S. 668, 687 (1984).
First, the defendant must show that counsel's performance was
deficient. Id. Second, the defendant must show that the
deficient performance prejudiced the defense.
Id. The
defendant has the burden to show prejudice.
State v. Sanchez, ___ Wis.2d ___, ___, 548 N.W.2d 69, 70
(1996).
An
ineffective assistance of counsel claim presents a mixed question of law and
fact. State v. Pitsch,
124 Wis.2d 628, 633-34, 369 N.W.2d 711, 714 (1985). The trial court's findings of fact will not be disturbed unless
clearly erroneous. Id. at
634, 369 N.W.2d at 714-15. However, the
determinations of whether counsel's performance was deficient and whether
defendant was prejudiced are questions of law, which we review de novo. Id. The reviewing court may dispose of an ineffective assistance
claim on either ground. See State
v. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d 845, 848 (1990).
Burch
argues that trial counsel was deficient because he did not cross-examine
Wasemiller with the taped wire conversations.
At the postconviction hearing, Burch pointed out some discrepancies
between the officer's testimony and the taped wire conversations.
Trial
counsel testified at the postconviction hearing that he discussed playing the
tape with Burch. Trial counsel
testified that he played the tape for his client and urged Burch to allow him
to use the tape at trial to impeach Wasemiller. However, according to trial counsel, Burch refused to let him
play the tape at trial because Burch was afraid the jury would identify his
voice on the tape. Burch did not
testify at the postconviction hearing.
Although
the court did not determine whether trial counsel's performance was deficient,
its discussion of counsel's performance shows that it implicitly accepted
counsel's testimony as credible.
We
conclude that counsel's decision to abide by his client's desire not to play
the tape does not constitute deficient performance. See SCR 20:1.2(a) (a lawyer shall abide by a client's
decisions concerning the objectives of representation).
Burch
also argues that the trial court erred in denying his motion for a new trial on
grounds of newly-discovered evidence, namely, the letter written by or for
Bates.
Whether
to grant a motion for a new trial is within the discretion of the trial
court. State v. Kaster,
148 Wis.2d 789, 801, 436 N.W.2d 891, 896 (Ct. App. 1989). We do not reverse a discretionary determination
if the court has considered the relevant facts, applied the proper law and,
using a rational process, reached a conclusion a reasonable judge could
reach. Rodak v. Rodak,
150 Wis.2d 624, 631, 442 N.W.2d 489, 492 (Ct. App. 1989). The moving party must prove that: (1) the evidence came to the moving
party's notice after trial; (2) the moving party has not been negligent in
seeking to discover it; (3) the evidence is material; (4) the evidence
is not merely cumulative; and (5) it is reasonably probable that a new
trial will reach a different result. Kaster,
148 Wis.2d at 801, 436 N.W.2d at 896.
Each element must be satisfied to entitle the moving party to a new
trial. Id.
The
letter written by or for Bates suggested that, in exchange for money, he might
testify falsely in order to clear Burch and defendants in other criminal cases
of drug charges. The trial court
decided that the first three criteria for newly-discovered evidence were met. However, the court determined that this
evidence was cumulative and would not change the result of the case.
We
conclude that the trial court properly exercised its discretion. The informant's testimony had already been impeached
by testimony on his criminal record and on agreements he had with the State on
charges pending against him in exchange for his testimony. The trial court could properly conclude that
the evidence was cumulative.
Furthermore, evidence that merely impeaches the credibility of a witness
does not warrant a new trial on this ground alone. Greer v. State, 40 Wis.2d 72, 78, 161 N.W.2d 255,
258 (1968), cert. denied, 393 U.S. 1122 (1969).
By
the Court.—Judgment and order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.