COURT OF APPEALS
DECISION
DATED AND FILED
July 20, 2000
Cornelia G. Clark
Clerk, Court of Appeals
of Wisconsin
NOTICE
This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
State
of Wisconsin,
Plaintiff-Respondent,
v.
Lester
Young,
Defendant-Appellant.
APPEAL from a judgment and an order of the circuit court for Dane County: sarah b. o’brien, Judge. Affirmed.
Before Eich, Vergeront and Deininger, JJ.
¶1 EICH, J. Lester
Young appeals from a judgment convicting him of robbery with use of force, in
violation of Wis. Stats. §
943.32(1) (1997-98)[1] and from an order denying his motion for postconviction
relief. He argues that his trial
counsel was ineffective for failing to: (1) move for dismissal of the
charge at the close of the State’s case on grounds that the State had not
established the elements of the offense; (2) object when one of the
witnesses testified as to another witness’s credibility; (3) object to the
testimony of a doctor who, reading from the medical records of other doctors,
described the patient as having been a victim of domestic abuse;
(4) request a mistrial when the prosecutor argued to the jury that the
victim’s recantation is not unusual in domestic cases; (5) argue to the
jury that there was a lack of evidence relating to the “taking” element of the
charge; and (6) request a mistrial when two of the jurors approached the
bailiff and expressed fear that Young might have their addresses. We reject the arguments and affirm the
judgment and order.
¶2 The charge
grew out of an altercation between Young and his girlfriend, Catherine
Scott. Madison Police Officer
Christopher Brown testified that he was dispatched to Scott’s residence and,
upon arrival, saw Scott lying at the foot of the stairs crying. Scott told Brown that on the previous day
Young had come to her apartment asking for some of the Valium she had been
taking for back pain, and that she had given him some because “she didn’t want
any problems.” She said that when Young
came back for more Valium the following day—the day of the incident—she refused
and he asked whether she had money for a telephone bill. When Scott showed Young some bills, he said
if he couldn’t have the Valium, he’d take the money instead and bit her hand,
causing her to release the money. Young
then pushed Scott to the floor and left her apartment with the money. Brown testified that he saw a faint red
semi-circle on Scott’s thumb. Scott
testified at trial that she had no memory of the events she had related to
Brown, and said that she later found the money in question in a drawer in her
apartment.
¶3 A jury
convicted Young of robbery with use of force and he was placed on probation for
three years. Other facts will be
discussed where appropriate.
¶4 The Sixth
Amendment to the United States Constitution and Article I, § 7 of the
Wisconsin Constitution guarantee every criminal defendant the right to
effective assistance of counsel. State
v. Felton, 110 Wis. 2d 485, 499, 329 N.W.2d 161 (1983). We review ineffective assistance of counsel
claims under the two-part test set forth in Strickland v. Washington, 466
U.S. 668, 687 (1984). The first element
of the Strickland test requires the defendant to show that
counsel’s performance was deficient—that counsel made such serious errors he or
she “was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” State v. Johnson,
153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). In our analysis, we pay great deference to counsel’s professional
judgment and make every effort to eliminate the distorting effects of
hindsight. Id. Counsel’s performance is not
deficient unless the defendant shows that, “in light of all the circumstances,
the identified acts or omissions were outside the wide range of professionally
competent assistance.” State v.
Guck, 170 Wis. 2d 661, 669, 490 N.W.2d 34 (Ct. App. 1992). If defective representation is found, the
defendant must show that counsel’s deficient performance prejudiced the
defense—that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Johnson, 153 Wis. 2d
at 129. Because representation is not
constitutionally ineffective unless both elements of the test are satisfied, Guck
at 669, we may dispose of an ineffective assistance of counsel claim where the
defendant fails to satisfy either element.
Johnson at 128.
¶5 Whether
counsel’s actions constituted ineffective assistance presents a mixed question
of fact and law. Strickland,
466 U.S. at 698. The trial court’s
factual findings—what the attorney did (or didn’t do) and what happened at
trial—will be upheld on appeal unless they are clearly erroneous. State v. Weber, 174
Wis. 2d 98, 111, 496 N.W.2d 762 (Ct. App. 1993). Whether the attorney’s performance was deficient and, if so,
whether it prejudiced the defendant, are questions of law which we review
without deference to the trial court’s decision. State v. Hubanks, 173 Wis. 2d 1, 25, 496
N.W.2d 96 (Ct. App. 1992).
¶6 Young
argues first that his counsel was ineffective for failing to move for dismissal
at the conclusion of the State’s case on grounds that the State had not
established the three elements of the charge.
We reject the argument.
¶7 Wisconsin
Stat. § 943.32, “Robbery,” states, in
part, that:
(1)
Whoever, with intent to steal, takes property from the person or presence of
the owner by either of the following means is guilty of a Class C felony:
(a) By using force against the person of the owner with
intent thereby to overcome his or her physical resistance or physical power of
resistance to the taking or carrying away of the property;
¶8 Thus, to
establish its case, the State had to prove that: (1) Scott owned the money;
(2) Young took the money from Scott or from the presence of Scott (that
there was a “taking” or “asportation”); (3) Young intended to steal the
money; and (4) Young used force against Scott with intent to overcome or
prevent physical resistance to the taking.
See Wis JI—Criminal 1475 (1999). Young challenges the first three elements.
¶9 We review
the circuit court’s denial of a motion to dismiss at the conclusion of the
prosecution’s case under the following rule:
… A motion to dismiss is addressed to the proposition
of whether the evidence taken most favorably to the prosecution is sufficient
to support a finding of guilt beyond a reasonable doubt. Since the motion to dismiss comes at the conclusion
of the State’s case, it is the obligation of the trial court to determine
whether the jury, acting reasonably and construing the evidence then available
in favor of the prosecution, could find guilt beyond a reasonable doubt. Two concepts deserve emphasis: (1) That the only evidence considered
is that adduced during the State’s case; and (2) that that evidence must
be construed most favorably to the prosecution.
Bere v. State, 76 Wis. 2d 514, 523, 251 N.W.2d 814 (1977).
¶10 Considering
the facts adduced during the State’s case-in-chief in light of that standard,
we are satisfied that had Young’s counsel made such a motion, the trial court
would have denied it. The word “owner” as used in Wis. Stat. § 943.32(3) is “a person in possession of
property whether the person’s possession is lawful or unlawful”; and the
element of “taking” merely requires the “slightest movement” of the stolen
goods. State v. Johnson,
207 Wis. 2d 239, 246, 558 N.W.2d 375 (1997). And the defendant’s “intent” may be inferred from “[his or her] conduct,
including … words and gestures taken in the context of the circumstances.” State v. Webster, 196
Wis. 2d 308, 321, 538 N.W.2d 810 (Ct. App. 1995). Scott’s possession of the money when Young
inquired about the phone bill plainly satisfies the element of ownership. Similarly, when Scott testified that Young
told her that if he could not have the pills, he would take the money instead,
that he then bit her hand, causing her to release the money, pushed her to the
floor and fled with the money, the elements of an intentional taking were
met. On that evidence, the jury could
have determined Young’s guilt beyond a reasonable doubt. We conclude, therefore, that his counsel’s failure to move for dismissal
was neither deficient performance nor prejudicial to the defense.
¶11 Young next
argues that counsel was ineffective for failing to object to certain testimony
of Officer Brown which, Young says, improperly commented on the credibility of
another witness (Scott). At trial, the
prosecutor asked Brown about his conversations with Scott at the time she gave
her first account of the events at issue, including questions such as whether
there was “anything about her that appeared to be evasive to you,” or
“[a]nything about her [that appeared as if] she was fabricating [her] story?;
or whether she had “change[d] her story” or was “inconsistent.” Brown’s answer to all such questions was
“No.” Young, referring us to the
well-known line of cases holding that one witness may not testify as to
another’s credibility,[2] argues that Brown’s responses to the questions—and the
prosecutor’s reference to that testimony in his closing argument—was improper
because it “clearly communicated to the jury Brown’s own opinion that Scott was
telling the tru[th] when she told Brown about the robbery.”
¶12 Without
deciding whether counsel’s performance was deficient for failing to object to
the questions, Young has not persuaded us that counsel’s conduct prejudiced his
defense. This wasn’t a case of one
witness commenting on the veracity of another witness’s trial testimony. It was simply a police officer describing
the factors which, to him, rendered Scott’s accusations of Young sufficient to
pursue charges against him. The jury
surely must have known that both Brown and the district attorney found Scott to
be credible and believed her story. If
they hadn’t, Young would never have been charged with the offense. These factors, coupled with the court’s
instructions admonishing the jurors that they are the sole judges of the
credibility of the testimony, negates any likely prejudice resulting from the
officer’s testimony.
¶13 Young’s
next claim of ineffectiveness is based on counsel’s failure to object—for lack
of foundation—to the testimony of a physician, Dr. James Svenson, who at one point
in his testimony read a passage from another physician’s treatment record
indicating that, after being taken to the hospital, Scott told the other doctor
that she had been hit or “thrown to the floor” by Young. Svenson could not say for sure, however,
whether the other doctor actually took that information directly from Scott, or
whether it came from other hospital personnel.
As a result, says Young, Svenson’s testimony is inadmissible for lack of
foundation. Again, we disagree. We are satisfied that, had counsel objected
to the admission of Svenson’s testimony or the records upon which he relied,
the objection would have been overruled because both are admissible as
exceptions to the hearsay rule. Under Wis Stat. §§ 908.03(4) and (6),
the following are not considered hearsay:
Those subsections provide as follows:
(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR
TREATMENT. Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain or sensations, or
the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment ….
….
(6) RECORDS
OF REGULARLY CONDUCTED ACTIVITY. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted by, a person with
knowledge, all in the course of a regularly conducted activity, as shown by the
testimony of the custodian or other qualified witness, unless the sources of
information or other circumstances indicate lack of trustworthiness.
¶14 It is
undisputed that Scott’s statement to medical personnel at the hospital relating
to the cause of her injury was made for the purpose of medical diagnosis or
treatment within the meaning of subsection (4). Similarly Svenson’s use of the other physician’s report is
permissible under subsection (6). He
testified, for example, that such an entry in the hospital admission records
would have been made in the course of regularly conducted practices and
procedures at the hospital, and that both the supervising physician and the
resident would have interviewed Scott in the process. Thus, even though Svenson was not the person who made the entry
into the medical record about which he was testifying, and despite the fact
that he had no personal knowledge as to whether the reporting physician spoke
directly with Scott prior to making the entry, or whether he simply noted into
the record certain information relayed to him from a resident or nurse, his
testimony and the medical records are admissible under Wis. Stat. § 908.03 and Young’s counsel was not
deficient for failing to object.
¶15 Young next
challenges counsel’s effectiveness on grounds that he failed to object to the
comment made by the prosecutor during his closing argument that “[d]omestic
cases happen each day and it is not unusual for victims to recant the[ir]
testimony.” He argues that the prosecutor’s
argument, which extended beyond reasoning from the evidence and in fact
suggested that the jury arrive at its verdict by considering factors other than
the evidence—i.e., that domestic abuse victims recant their stories—was
impermissible and warranted a mistrial.
¶16 Young’s
trial attorney testified that he affirmatively decided against objecting to the
prosecutor’s statement because he didn’t think it was “worth” pursuing under
the circumstances. He said he “was
making his own argument” and “didn’t feel that [he] needed to object.” In
reviewing counsel’s performance, we give great deference to the attorney’s
strategic choices and make every effort to avoid making determinations based on
hindsight. Johnson, 153
Wis. 2d at 127. And we cannot say
here that counsel’s failure to object to the prosecutor’s comment was a
representational deficiency “so serious that [he] was not functioning as the
‘counsel’ guaranteed ... by the Sixth Amendment.” Id.[3]
¶17 Next, Young argues that counsel was deficient
because, in his closing argument, he didn’t “impress[] the jury with the fact
that there was very little evidence that Young committed the robbery.” According to Young, counsel should have
placed greater emphasis on various inconsistencies in Scott’s recounting the
event to various people—particularly the fact that she never told any of the
medical personnel at the hospital that she had been robbed, but only that she
had been physically assaulted. Young
also says that counsel should have argued that none of the medical reports
received as exhibits noted any claim on her part that Young had robbed her, and
should have placed greater emphasis on Scott’s testimony that she later found
the money in a drawer. We are not
persuaded.
¶18 First, the fact that the medical records didn’t
reflect that Scott mentioned the robbery doesn’t mean that she didn’t tell any
of the hospital personnel about the robbery or the reason she was
attacked. It is entirely possible that
the medical staff did not record any mention of the robbery because, unlike the
assault, the taking of the money was not relevant to the history of Scott’s
injury, or its diagnosis or treatment.
What was relevant—and what is included in the reports—is that Scott
complained of back pain after being pushed to the floor by Young. Beyond that, we note that Young’s counsel
did mention in his closing argument that the money was later found in a
drawer. We see no deficient performance
here.
¶19 Finally, we believe Young’s final argument—that
counsel was ineffective for failing to request a mistrial when, during a recess
in the trial proceedings, two jurors inquired to the court whether Young had
access to their addresses—is similarly unavailing. When the jurors made their inquiry, counsel expressed his concern
to the court as to whether the two jurors could still be fair and impartial,
and the court responded that, in its view, conducting a voir dire
examination of the jurors would do more harm than good. Instead, the court instructed the jurors
that Young had no personal information about them; and we think that handling
the matter in this way was well within the circuit court’s discretion. We are similarly satisfied that, even had
counsel made a more formal request to the court, the result would have been the
same.[4]
By
the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
[2] See State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984), and State v. Jensen, 147 Wis. 2d 240, 249 432 N.W.2d 913 (1988).
[3] Here, too, we are unable to ascertain prejudice. In our view, the prosecutor’s statement is unlikely to have been prejudicial in view of the court’s instruction to the jurors that they are not to consider counsel’s arguments as evidence in the case. Had counsel objected, we doubt the trial court would have done more than remind the jury of that rule.
[4] Young also requests a new trial in the interest of justice. A new trial is appropriate when the real controversy has not been fully tried or will not likely produce the same result. State v. Von Loh, 157 Wis. 2d 91, 102, 458 N.W.2d 556, 560 (Ct. App. 1990). For the reasons already discussed, we do not believe a new trial would produce a different result, and therefore deny Young’s request. We also find Young’s argument that the real controversy was not tried unavailing. While we have the power to order a new trial on that basis under Wis. Stat. § 752.35, that power is discretionary, and should be exercised only in exceptional cases. See State v. Betterley,183 Wis. 2d 165, 178, 515 N.W.2d 911 (Ct. App. 1994). The nature of the disputed statements in this case is minimal. Even if we were to find that the testimony was impermissibly admitted (which we do not), it was not so prejudicial as to prevent the real controversy from being tried. As we have noted, the police officer’s statement as to whether or not he had the impression that the victim was fabricating her story merely amplified a fact which was already implicit in the charge: that the police believed the victim. And as stated above, the testimony based on medical records was admissible under a hearsay exception. For these and all the reasons stated in the body of this decision, we decline to exercise our discretion to reverse under § 752.35.