COURT OF APPEALS DECISION DATED AND FILED May 27, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Philip H. Joiner-El,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Dykman, P.J., Lundsten and Higginbotham, JJ.
¶1 PER CURIAM. Philip Joiner-El, pro se, appeals from an order denying a Wis. Stat. § 974.06 (2007-08)[1] motion alleging ineffective assistance of counsel. We reject Joiner-El’s claims and affirm.
¶2 Joiner-El was convicted after a jury trial of aggravated battery, extortion while armed with a dangerous weapon, false imprisonment and first-degree reckless endangerment, as a habitual criminal. The convictions stemmed from the beating of Rosalie Stankovich, who was eight-and-one-half months’ pregnant with his child. Stankovich had been beaten on both legs with a baseball bat, punched about the head more than ten times, and had a knife stuck in her mouth that left a wound, among other things.
¶3 The next morning, when Joiner-El finally agreed to take Stankovich to the hospital because she was in labor, he first took Stankovich to the credit union where he forced her to sign a check, and took $200 of the proceeds. He then stopped at an apartment building before going to the hospital.
¶4 Voluminous postconviction proceedings followed the trial, including at least one previous Wis. Stat. § 974.06 motion and a previous appeal.[2] The circuit court subsequently denied another pro se § 974.06 motion, and this appeal follows.
¶5 When a defendant files a Wis.
Stat. § 974.06 motion after he has already filed a previous motion
or direct appeal, a sufficient reason must be shown for failure to raise the
new issues. State v. Escalona-Naranjo,
185
¶6 Joiner-El’s arguments are difficult to discern. It appears Joiner-El first argues his postconviction counsel should have alleged as error the fact that trial counsel did not seek a third-party defense jury instruction. See Wis. Stat. § 939.48(4). Although Joiner-El concedes he struck Stankovich, he claims he did so during a struggle out of fear for his unborn child’s health upon discovering Stankovich injecting a needle in her arm in the bathroom. Joiner-El also insists in his reply brief that “there were no serious injuries sustained .…”[3]
¶7 The privilege of defense of others, like the privilege of
self-defense, has two components:
(1) subjectively, the defendant must have actually believed he was
acting to prevent or terminate an unlawful interference; and (2) objectively,
the belief must be reasonable.
¶8 Here, both Stankovich and her physician described the extent of the injuries inflicted by Joiner-El. These included beatings around the head more than ten times so hard her vision blurred, beatings on the legs with a baseball bat and injuries inflicted with a knife. Moreover, the photographs received into evidence depicted the massive injuries to Stankovich’s legs, head and body.[4] The beating of Stankovich was so severe that there is no reasonable possibility that a jury would have found the force used was objectively necessary, even if it found Joiner-El subjectively believed his unborn child’s life was in jeopardy. Indeed, we conclude such a defense would have prejudiced Joiner-El at trial. In addition, although he denied he struck her with the baseball bat, Joiner-El himself admitted that he could not say how many times he had hit and kicked Stankovich.
¶9 It is not ineffective assistance to fail to make a request
which would have failed.
¶10 Joiner-El also argues postconviction counsel should have
alleged as error the lack of objection by trial counsel to the admission into
evidence of the baseball bat with which Joiner-El was alleged to have beaten
Stankovich. Specifically, Joiner-El
contends the State failed to establish a sufficiently reliable chain of
custody.[6] However, the record contains documents signed
by a
¶11 Joiner-El also argues trial counsel was ineffective for failing
to request a “nexus” jury instruction connecting Joiner-El to the knife used on
Stankovich. Ordinarily, where the State
alleges that the defendant merely possessed a dangerous weapon in the commission
of a crime for purposes of the “while armed” penalty enhancer, a nexus
instruction is required. See State
v. Gordon, 2003 WI 69, ¶31, 262
¶12 Finally, regarding the penalty enhancer for habitual criminality, Joiner-El insists in his reply brief that “no counsel has ever ‘investigated, or tried to refute or objected to the state[’]s contention that Joiner-El, had multiple felonious convictions in a variety of … States ….” Joiner-El asserts, “It appears that somehow I have been incorrectly referenced to another Person’s criminal history Quite Possible another person with the same name.”
¶13 It appears Joiner-El raises this issue for the first time on
appeal in his reply brief. Generally, we
do not consider issues raised for the first time in the reply brief. See Northwest Wholesale Lumber, Inc. v.
Anderson, 191
¶14 Under Wis. Stat. § 973.12,
a court may enhance a repeater penalty, pursuant to Wis. Stat. § 939.62, if the defendant admits the prior
conviction or the State proves the prior conviction. State v. Rachwal, 159
¶15 At the sentencing hearing, the State offered certified records
from the
¶16 The circuit court found the certified
I do find that the repeater provision
has been proven based on the state of
¶17 Accordingly, we are not persuaded Joiner-El was subject to sentence enhancement based upon mistaken identity. The court was provided sufficient information upon which to conclude that Joiner-El was a repeater.[9]
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The record indicates an appeal was voluntarily dismissed in 1993 and another notice of appeal was filed in 2001.
[3] Joiner-El’s
briefs contain citations to “exhibits” contained in the appendixes to his
briefs, but he fails to cite to the record on appeal. We will not search the record for evidence to
support a party’s contentions. Grothe
v. Valley Coatings, Inc., 2000 WI App 240, ¶6, 239
[4] Stankovich testified “[h]e made me go into the
bathroom,” and “[h]e was arguing with me about something, asking me
questions.” Stankovich stated:
He said that I made him
get sick with his drugs because I had messed with his needles and things, which
I hadn’t. And the more I tried to
convince him I didn’t touch his things, the madder he got with me and started
hitting me and made me tell him what he wanted to hear.
Stankovich
described at trial how Joiner-El began hitting her “around the sides of the
head” more than ten times so hard “that my vision was blurred.” Joiner-El then grabbed a baseball bat and
began striking Stankovich on the front and sides of both legs for over half an
hour. Joiner-El then took a six-inch
knife and stuck it down Stankovich’s throat prior to cutting her on the
arm.
Stankovich’s
physician, Milton Johnson, Jr., testified that when he first observed her in
the hospital after the beating:
her face was very obviously
swollen and bruised … her left eye was very swollen and bruised, her right ear
had lacerations on it, cuts, her cheeks were very swollen. She could not open her mouth fully because
her jaw was so tender.
Dr. Johnson also described cuts on the roof of
Stankovich’s mouth and on the back of her elbow, which he characterized as
“very clean” and consistent with a sharp object such as a knife. He also described large bruises on the arms
and armpits, the left side of her back and “very large bruises on both legs,
she had a lot of pain in both of her legs.” Dr. Johnson also testified that he saw
Stankovich ten to twelve times during the preceding six months for prenatal
care, and he observed no evidence whatsoever that Stankovich was using
drugs.
Joiner-El contends in his reply brief that “the attending physician was M.J. Cullenward,” but provides no record citation to support such a contention and concedes “he did not testify at court.” Joiner El’s contention in that regard will therefore not be considered.
[5] Joiner-El
also argues that trial counsel “should have brought forth a defense of … habit
evidence.” This appears to relate to an
argument in his Wis. Stat. § 974.06
motion that his trial counsel did not call available character witnesses to
testify to an alleged cocaine addiction of Stankovich. This argument is undeveloped in Joiner-El’s
brief on appeal and will not be considered.
See M.C.I., 146
[6] Joiner-El
contends the State “blatantly” destroyed exculpatory evidence. This argument is undeveloped, conclusory and
will not be considered. See M.C.I.,
146
[7] Indeed, Joiner-El’s argument that the bat presented at trial “was [n]ot the weapon claimed to have been used” is essentially a contention that he must be exonerated if he beat his girlfriend with a different baseball bat. Such a suggestion is ludicrous.
[8] Joiner-El also appears to claim error in the inability of the State to produce the knife at trial. However, Stankovich testified that Joiner-El stuck the knife down her throat and Dr. Johnson corroborated that testimony, which the jury was entitled to believe.
[9] Joiner-El also appears to argue for discretionary reversal in the interests of justice. This argument is also undeveloped and will not be considered. In any event, we conclude the real controversy was fully and fairly tried.