COURT OF APPEALS DECISION DATED AND RELEASED February 4, 1997 |
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. 95-3224-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
George G. Kidd,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. George G. Kidd appeals from a judgment of
conviction entered after a jury found him guilty of first-degree intentional
homicide, while armed, as party to a crime, contrary to §§ 940.01(1),
939.63, and 939.05, Stats. He also appeals from an order denying his
postconviction motion, which alleged that he received ineffective assistance of
trial counsel. He claims that his trial
counsel provided ineffective assistance by failing to impeach one of the
State's identification witnesses, Samuel Johnson. Because Kidd did not receive ineffective assistance, we affirm.
I. BACKGROUND
On December 18, 1993,
James Anderson was murdered. Two days
later, Johnson unequivocally identified Kidd from a photo array as the
individual who committed the murder.
Kidd was arrested and charged with first-degree murder. In January 1994, Johnson was charged with
two misdemeanor offenses, battery and driving after suspension. In June, Johnson pled guilty to the battery
charge and was placed on probation. The
driving after suspension charge was dismissed.
The day after he entered
his plea to the misdemeanor offense, Johnson testified at Kidd's homicide
trial. Kidd was convicted. Kidd filed a postconviction motion alleging
that his trial counsel was ineffective for failing to impeach Johnson on the
basis that he was testifying for the State in order to receive favorable
treatment regarding the misdemeanor offenses.
The trial court held a Machner[1]
hearing. Trial counsel testified that
he did not impeach Johnson regarding the misdemeanor charges because in his
opinion the jury would find this alleged bias “laughable.” The trial court denied Kidd's motion. Kidd now appeals.
II. DISCUSSION
Kidd claims that he
received ineffective assistance of trial counsel. Specifically, he argues that his trial counsel should have
questioned Johnson regarding his motivation for testifying. Kidd argues that because Johnson was also
being prosecuted for the misdemeanor offenses, the jury could have inferred
that Johnson was testifying for the State in order to receive some favorable
consideration with respect to the charges pending against him. We reject Kidd's claim.
The United States
Supreme Court set out the two-part test for ineffective assistance of counsel
under the Sixth Amendment in Strickland v. Washington, 466
U.S. 668 (1984). The first prong of Strickland
requires that the defendant show that counsel's performance was deficient. Id., 466 U.S. at 687. This demonstration must be accomplished
against the “strong presumption that counsel acted reasonably within
professional norms.” State v.
Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). The second Strickland prong
requires that the defendant show that counsel's errors were serious enough to
render the resulting conviction unreliable.
Strickland, 466 U.S. at 687. In reviewing the trial court's decision, we accept its findings
of fact, its “‘underlying findings of what happened,’” unless they are clearly
erroneous, while reviewing “‘[t]he ultimate determination of whether counsel's
performance was deficient and prejudicial’” de novo. Johnson, 153 Wis.2d at
127-28, 449 N.W.2d at 848 (citations omitted).
In assessing Kidd's
claim that his counsel was ineffective, we need not address both the
deficient-performance and prejudice components if Kidd cannot make a sufficient
showing on one. See Strickland,
466 U.S. at 697. Because Kidd cannot
make a sufficient showing on the prejudice prong, we need not address the
deficient-performance prong of the Strickland test. We address only the prejudice prong. To prove prejudice, Kidd must demonstrate
that his counsel's errors “were so serious as to deprive [him] of a fair trial,
a trial whose result is reliable.” Id. As recently restated, the “prejudice”
component of Strickland “focusses on the question whether
counsel's deficient performance renders the result of the trial unreliable or
the proceeding fundamentally unfair.” Lockhart
v. Fretwell, 504 U.S. 364, 372 (1993). Stated another way: “In order to
show prejudice, `[t]he 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. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.'” State v. Sanchez,
201 Wis.2d 219, 236, 548 N.W.2d 69, 76 (1996) (quoting Strickland,
466 U.S. at 694).
In reviewing the record
before us, we conclude that Kidd cannot sufficiently demonstrate that counsel's
failure to impeach Johnson was prejudicial.
Our conclusion is based on several factors. First, according to the record, Johnson identified Kidd before he
was charged with the misdemeanor offenses, before he was prosecuted and before
he was placed on probation. Because
Johnson made the original identification before any potential bias arose, the
impeachment Kidd requests would have been of marginal value. Second, the prosecutor in Kidd's case
refused to provide any consideration to Johnson and Johnson was told this prior
to giving testimony. Third, Johnson was
sentenced on the misdemeanor charge before he testified as a witness in Kidd's
case. In other words, Johnson's
prosecution had concluded, he was not offered any consideration for his
testimony and at the time he testified, he was not “under the State's
thumb.” Fourth, another eyewitness
identified Kidd as the person who committed the homicide. Finally, Johnson was impeached with evidence
that he had twice been convicted of a crime.
The jury, therefore, was provided with information that Johnson had
broken the law, and could fairly assess his credibility. Based on all of the foregoing, trial
counsel's failure to impeach Johnson with the facts that he was being prosecuted
by the State and that Johnson had at one time encouraged his attorney to seek
favorable consideration from the State, is not sufficient to undermine
confidence in the outcome. Even if this
impeachment had occurred, the result of the proceeding would not have been
different.[2]
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Kidd also argues that trial counsel was ineffective for failing to impeach Johnson with evidence that Johnson lied about attempting to elicit favorable consideration from the State in exchange for his testimony. At the postconviction hearing in the instant case, Johnson testified that he never asked for such consideration. Johnson's attorney testified that Johnson did raise this issue but when counsel mentioned it to the prosecutor, the prosecutor refused to offer any favorable consideration in exchange for Johnson's testimony. Because this did not occur until the postconviction hearing, we will not speculate as to whether Johnson would have lied about this issue at trial.