District IV
April 11, 2013
To:
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
You are hereby notified that the Court has entered the following opinion and order:
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2012AP2073-CR |
State of Wisconsin v. Markis D. Terrell (L.C. # 2010CF1083) |
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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[1]
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).[2] 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).
Diane M. Fremgen
Clerk of Court of Appeals