CA Blank Order

Before Lundsten, Higginbotham and Kloppenburg, JJ.

Rufus Majette appeals a criminal conviction and an order denying his postconviction motion. The postconviction motion sought a new trial based upon allegations that one or more jurors either slept or displayed signs of drowsiness during Majette’s trial in violation of Majette’s due process rights, and that counsel provided ineffective assistance by failing to object or otherwise preserve the issue. The circuit court denied the motion without a hearing. After reviewing the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21 (2011-12).[1] We affirm.

In order to obtain a hearing on a postconviction motion, a defendant must allege material facts sufficient to warrant the relief sought. State v. Allen, 2004 WI 106, ¶¶9 and 36, 274 Wis. 2d 568, 682 N.W.2d 433. In the context of a claim of ineffective assistance of counsel, that means the facts alleged would, if true, establish both that counsel provided deficient performance and that the defendant was prejudiced by that performance. State v. Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12. No hearing is required, though, when the defendant presents only conclusory allegations or when the record conclusively demonstrates that he or she is not entitled to relief. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). Non‑conclusory allegations should present the “who, what, where, when, why, and how” with sufficient particularity for the court to meaningfully assess the claim. Allen, 274 Wis. 2d 568, ¶23.

Here, Majette was jointly tried with a co-defendant, Markis Terrell, who raised essentially the same due process and ineffective assistance issues stemming from the jurors’ attentiveness in his own postconviction motion and on an appeal to this court. This court issued a summary order rejecting Terrell’s claims, in which we determined that the circuit court’s key factual findings—namely, that no jurors actually fell asleep during trial and that proactive measures had been taken promptly each time a juror appeared drowsy—were not clearly erroneous. Rather than repeat our discussion of what happened at trial and the basis for the circuit court’s findings, we incorporate into this order our decision in State v. Terrell, Appeal No. 2012AP2073-CR, which we are attaching.

In addition to adopting our rationale from Terrell, we further note that Majette’s motion was also insufficient to warrant a hearing because Majette did not identify any additional evidence that he would present at a hearing in order to show that any jurors were inattentive. In sum, given the circuit court’s determination that the existing record did not support the allegation that jurors were inattentive, and the lack of allegations of any evidence beyond the record to support Majette’s claims, we conclude that the circuit court properly denied Majette’s motion without a hearing.

IT IS ORDERED that the judgment of conviction and order denying postconviction relief are summarily affirmed under Wis. Stat. Rule 809.21(1).

Hon. William E. Hanrahan

Circuit Court Judge

215 South Hamilton, Br. 7, Rm. 4103

Madison, WI 53703

Carlo Esqueda

Clerk of Circuit Court

Room 1000

215 South Hamilton

Madison, WI 53703

Mary Ellen Karst

Asst. District Attorney

Rm. 3000

215 South Hamilton

Madison, WI 53703

Timothy David Kiefer

Kiefer Law Office LLC

P. O. Box 1546

Madison, WI 53701-1546

Robert Probst

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Before Higginbotham, Sherman and Kloppenburg, JJ.

Markis Terrell appeals a circuit court’s judgment of conviction and an order denying his motion for an evidentiary hearing to determine whether jurors were asleep during trial, and denying his alternative request for a Machner[2] hearing to determine whether his trial counsel had rendered ineffective assistance. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21 (2011-12).[3] We affirm.

The undisputed facts are as follows. The circuit court held a jury trial on various charges against Terrell stemming from a fistfight and subsequent shooting. At the end of opening statements, Terrell’s trial counsel noted to the court that a juror “was falling asleep.” The circuit court stated that it “was watching the jury most of the time” and did not notice the juror sleeping. Furthermore, the court assured Terrell’s trial counsel that it would “keep an eye on [the juror].”

During the State’s direct examination, the circuit court interrupted testimony to take a quick recess, because it noticed that some jurors looked a “little woozy.” The circuit court suggested that the jurors purchase caffeinated beverages because it was that “time of day.” Outside the presence of the jury, the court explained that it “noticed one juror was struggling to keep his eyes pointed straight ahead.” However, the court noted that the juror was “conscious the entire time and appeared to be listening.”

Following closing arguments, the circuit court excused the jury for a short break. Outside the presence of the jury, Terrell’s trial counsel notified the court that one juror appeared to be “nodding off fairly solidly” and “might have been completely asleep” during different segments of the State’s closing argument. The court noted that it saw the juror momentarily close her eyes, but it appeared that the juror was “weighing conflicting thoughts and concentrating” and then “it appeared she may be going down ….” The court further noted that as a result, it then signaled to a bailiff and the bailiff shook the juror on the shoulder. Terrell’s trial counsel noted the incident for the record but did not request a remedy at that time.

The jury found Terrell guilty of attempted first-degree homicide and possession of a firearm by a felon, and the court entered a judgment of conviction. Terrell filed a motion requesting an evidentiary hearing to determine whether jurors were asleep during the trial. Additionally, Terrell requested a Machner hearing to determine whether his trial counsel had rendered ineffective assistance. The court denied Terrell’s request for an evidentiary hearing, finding that trial counsel’s observations that a juror was “‘falling asleep’” were “not corroborated by the court’s own observations from its superior position” in the courtroom. In addition, the court found that Terrell’s trial counsel did not fail to preserve a “‘sleeping juror claim’” because no such claim existed to preserve, as the court found there was no sleeping juror. Terrell now appeals, alleging that the circuit court erred by denying an evidentiary hearing to determine whether Terrell was materially prejudiced when jurors were allegedly asleep or falling asleep during the trial, and denying a Machner hearing to determine whether Terrell had ineffective assistance of counsel.

Whether a defendant’s postconviction motion alleges sufficient facts to entitle the defendant to a hearing is a mixed standard of review. State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. First, the circuit court must determine whether the motion alleges sufficient material facts, which if true, would entitle the defendant to relief. This is a question of law that is reviewed de novo. Id. If “the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing.” Id. Second, we review a circuit court’s conclusion regarding the decision to hold a postconviction hearing under a “deferential erroneous exercise of discretion standard.” Id. We will uphold a circuit court’s findings of fact regarding the attentiveness of the jurors unless the findings are clearly erroneous. State v. Novy, 2013 WI 23, ¶48, ___ Wis. 2d ___, 827 N.W.2d 610.

Terrell first argues that the circuit court erred by failing to question the jurors about their attentiveness and thus should have summoned all the jurors for an evidentiary hearing. The Wisconsin Supreme Court recently explained that review of an allegation of juror inattentiveness involves a twofold inquiry. See id., ¶47. First, “the circuit court must determine, as a question of fact, whether the juror was actually inattentive to the point of potentially undermining the fairness of the trial; here, whether the juror was sleeping.” Id. (citing State v. Hampton, 217 Wis. 2d 614, 621, 579 N.W.2d 260 (Ct. App. 1998)). Second, if the circuit court finds that the juror was in fact sufficiently inattentive, the court must determine whether the defendant suffered prejudice as a result of the juror’s inattentiveness. Novy, ___ Wis. 2d ___, ¶47, 827 N.W.2d 610.

In Novy, defense counsel moved to strike a juror for sleeping during the defense’s closing argument. Id., ¶17. The circuit court denied the motion. Id. The circuit court reasoned that it always made an effort “‘to keep track of what’s going on with the jurors.’” Id. Moreover, the circuit court explained that it did not see the juror sleeping. Id. On review, the Wisconsin Supreme Court held that the circuit court’s finding that the juror was not sleeping was not clearly erroneous. Id., ¶51. The court concluded that it did not need to review whether the defendant was prejudiced by the alleged sleeping juror because there was no factual finding that the juror was actually asleep. Id.

Following Novy, we conclude that the circuit court did not err when it denied Terrell’s motion for an evidentiary hearing. As in Novy, Terrell has not established a fact necessary to his motion, because the circuit court did not find that a juror was sleeping. Rather, the court watched the jurors throughout the trial and, at times in which a juror may have appeared “woozy” or was “momentarily clos[ing] her eyes,” the court took action to proactively prevent any juror from falling asleep. In its ruling on Terrell’s motion, the circuit court explicitly found that its attention “was focused primarily upon the jury,” and that trial counsel’s observations that jurors appeared to be falling asleep “were not corroborated by the court’s own observations from its superior position” in the courtroom. The circuit court’s findings regarding the conduct and attentiveness of the jurors were not clearly erroneous. Therefore, we conclude that the court did not err in denying Terrell’s request for an evidentiary hearing to determine whether any juror’s alleged sleeping was prejudicial.

Second, Terrell argues that the circuit court erred when it denied his request for a Machner hearing to determine whether trial counsel was effective. As explained above, the circuit court found during trial and in its postconviction ruling that no jurors were asleep. Since no jurors were asleep, Terrell’s trial counsel had no grounds to raise an objection and did not forfeit any claim, as no claim for relief existed. The record conclusively demonstrates that Terrell is not entitled to relief. Therefore, the court did not err when it denied Terrell’s motion to hold a Machner hearing.

IT IS ORDERED that the judgment and order are summarily affirmed under Wis. Stat. Rule 809.21(1).

[1] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

[2] State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

[3] All references to the Wisconsin Statutes are to the 2011-2012 version unless otherwise noted.



	2012AP2062-CR	State of Wisconsin v. Rufus G. Majette (L.C. #2010CF1082)



	2012AP2073-CR	State of Wisconsin v. Markis D. Terrell (L.C. # 2010CF1083)