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COURT OF APPEALS
DECISION
DATED AND FILED
December 27, 2007
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
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IN COURT OF
APPEALS
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State of Wisconsin,
Plaintiff-Respondent,
v.
Paul Dwayne Westmoreland,
Defendant-Appellant.
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APPEAL
from a judgment, corrected judgment, and order of the circuit court for Milwaukee County: MEL
FLANAGAN, Judge. Affirmed.
Before Curley, P.J.,
Fine and Kessler, JJ.
¶1 FINE, J. Paul Dwayne
Westmoreland appeals a judgment
and a corrected judgment entered on jury verdicts finding him guilty of
first-degree intentional homicide with a dangerous weapon, see Wis. Stat. §§
940.01(1)(a), 939.63, two counts of first-degree recklessly endangering safety
with a dangerous weapon, see Wis. Stat. §§ 941.30(1), 939.63,
and possessing a firearm as a felon, see Wis. Stat. § 941.29(2). He also appeals the trial court’s order
denying his motion for postconviction relief without a hearing. His sole contention on appeal is that his
trial lawyer ineffectively represented him when she argued alternative and
inconsistent theories in her closing argument.
We affirm because as a matter of law the closing argument by Westmoreland’s lawyer was, in the context of this case, a
matter of strategy, to which, as explained below, we owe considerable
deference.
I.
¶2 Westmoreland was accused of
shooting and killing Genecy
Joyner, and shooting Kelvon Rederford
and a juvenile, Robert
K. B.,
Jr., in September
of 2004. As we show below, both living
victims, Rederford and Robert, testified at the trial that they saw Westmoreland
shoot Joyner. Further, Rederford told
the jury that Westmoreland shot him.
¶3 This case has its roots in Westmoreland’s belief that both
Rederford and his brother-in-law, Joyner, were implicated in the murder of his
friend, Dale Williams, a week earlier.
According to Rederford, Westmoreland and some
others approached Rederford in a Milwaukee
neighborhood and asked about Dale
Williams’s murder. Sensing that Westmoreland was angry,
Rederford asked him “‘[w]hat’s wrong?’”
Westmoreland replied: “‘My guy
dead, somebody know something.’” After
repeating that he thought the others knew what had happened to Dale Williams,
Westmoreland, according to Rederford, “pulled his gun,” and “aimed at” Joyner,
who “put his hands up” saying, “‘Wayne, no, man.’” Rederford testified that Westmoreland “shot
at [Joyner] anyway,” and then turned to shoot Rederford. Rederford was hit in his arm and fell to the
ground.
¶4 Rederford testified that after Westmoreland
shot him, Westmoreland chased Joyner “shooting
him.” As Rederford got up and ran away,
he “just kept hearing shots.” Westmoreland’s trial lawyer asked how Rederford could be
certain that Westmoreland was the one shooting at
Joyner when he, Rederford, was running away:
Q So
you’re not watching or you’re not seeing what else is going on?
A As I
fell to the ground and my brother-in-law take off running, he [Westmoreland]
take off running behind my brother-in-law shooting him. I could see that. You ain’t talking to no dummy. Come on now.
The jury was told that Rederford
had been convicted of two crimes as an adult and one as a juvenile.
¶5 Robert
K. B.,
Jr., also
testified that he saw Westmoreland shoot Joyner, who
was the boy’s cousin. Although he, too,
was shot, he could not identify, other than by a description, the person who
had done it. Kenneth Branch, who told
the jury that Robert was his “little godcousin,” testified that he was in the
area and heard “[s]ix to seven shots” when he “hit the ground” in
response. He said that he saw
Westmoreland chasing Robert, who was riding a bicycle, and “[s]hootin’ [sic] at him.” He also told the jury that Westmoreland
was the only person of the group in the area during the incident whom he saw
with a gun. Branch admitted that he had
five adult criminal convictions and one as a juvenile.
¶6 Willie Staten, who said that he was Joyner’s cousin, was also
in the area during the incident and testified that he saw the confrontation between
Westmoreland and Joyner. He told the
jury that Westmoreland pointed a gun at Joyner’s
face and he heard, but did not see, shots.
He did, however, see Joyner “running” and that “after he fell that’s
when I seen [sic] the defendant walk
-- walk up to him, get to shooting him again.”
¶7 Tina Williams also implicated Westmoreland in the
shootings. She told the jury that she
was in her house when she heard shots from the street. Concerned about her
children who were playing outside, she went outside and saw Westmoreland
running down the street with a handgun.
¶8 The jury also heard that after first denying that he had
anything to do with the shootings, Westmoreland
ultimately admitted to the police that he had fired shots, but contended that
he did not intend to kill anyone. The
detective who wrote the statement that Westmoreland
signed, and which was received into evidence, read it to the jury.
¶9 According to the detective, Westmoreland
said that he had asked Rederford and Joyner if they knew who had killed Dale Williams. When he was not, apparently, getting
satisfactory answers, Westmoreland admitted that he became “upset and noticed a
large crowd and [sic—“had”?] gathered
around” them. Westmoreland
told the detective that he was concerned about the crowd, and tried to disperse
it: “Westmoreland
stated that he, Westmoreland, pulled out a nickel
plated nine millimeter pistol with a black handle from the left front side of
his waistband of his pants. He stated he
did this to get the crowd to move away.”
Westmoreland told the detective that after
two men told him to put the gun away, he “turned and began firing the pistol to
move the crowd away.” Westmoreland
said that he had heard Joyner tell him to stop, and, after that, “he, Westmoreland, turned to run and fired three more times. He stated he believes he fired about nine
times in total.” Westmoreland
also told the detective that “as far as he knows, no one else had a gun, and he
did not see anyone else with a gun” there during the incident. He said that he did not know anyone had been
shot until later, when a friend of his told him. He had earlier told the police that he first
learned of the shooting from the television news.
¶10 The State also called Edmond Cornelius Young as a witness. Young had been in
prison with Westmoreland after the shootings, and he
told the jury that Westmoreland had admitted his
involvement. According to Young,
Westmoreland told him that he, Westmoreland, shot Joyner “in the back three
times and when he fell, he run [sic]
up on him and shot him two more times.”
The jury learned that Young had three adult
criminal convictions.
¶11 As was his right, Westmoreland
neither testified nor called any witnesses in his defense. Nevertheless, in her opening statement to the
jury, Westmoreland’s trial lawyer told the jury flat out that Westmoreland “was
not involved” in any of the shootings, and that, apparently referring to the
statement in which Westmoreland said that he shot into the crowd to disperse it
but that he did not intend to hurt anyone, “he confessed to a crime that he did
not commit.” She also told the jury that
it would have to assess the credibility of the various witnesses “and decide
for yourself” if the witnesses implicating Westmoreland were credible, but “I
believe, and I submit to you that the evidence will show, that these people are
not believable.”
¶12 In her closing argument, Westmoreland’s lawyer again told the
jury that Westmoreland was not involved in the shootings and that the witnesses
who said that he was were “patently incredible” and were infected by bias
because: many of them were relatives of
the victims; three had prior criminal convictions; and the witnesses were not
able to see much of what they told the jury they saw. She also contended that Westmoreland’s
statement to the police was coerced, despite the trial court’s earlier ruling
that it was not, a ruling that Westmoreland does not
dispute on this appeal.
¶13 After in essence repeating her opening statement’s contention
that Westmoreland was falsely accused and was not involved in the shootings,
his lawyer turned tack in her summation to argue that he was guilty of the
lesser-included crime of first-degree reckless homicide, on which the trial
court without objection and in accord with Westmoreland’s request had already
instructed the jury.
Now, I feel really weird about
this, and I don’t know how to state it more articulately, but I want you for a
second to set aside what I just said, and I feel like a turncoat, and I’m going
to step over here to the other side of the podium, okay?
I’ve just told you that my
client is not guilty as to all of these charges, but the law requires me to
make another argument in this instance, and that is regarding the homicide in
this case.
If you believe that my client
was involved in this incident, then he’s being charged with the wrong crime.
The State is seeking a -- a
conviction here on a charge of first degree intentional homicide, but the
Judge, again, in her packet of instructions, which you’re gonna [sic] get, told you that you have the
opportunity to consider a lesser charge in this instance, that being a charge
of first degree reckless homicide.
And I want to talk to you for
a minute about why Mr. Westmoreland is not guilty of first degree intentional
homicide, and why you have to consider the possibility of the first degree
reckless homicide, okay?
She then discussed the
difference between the two charges.
¶14 On his rebuttal argument, the prosecutor said that
Westmoreland’s lawyer was “talking out of both sides” of her mouth:
Part of what she’s saying is,
well, he didn’t do it; and then part of what she’s saying is, well, if he did
do it, then you should find him guilty of something less. So she’s talking out of both sides of her
mouth, and that’s the whole point, here.
¶15 As noted, the jury found Westmoreland guilty of first-degree
intentional homicide for shooting Joyner, and Westmoreland contends that his
lawyer was ineffective because she argued inconsistent theories.
II.
¶16 To prove ineffective assistance of counsel, a defendant must
show: (1) deficient performance by his or
her lawyer; and (2) prejudice. Strickland v. Washington,
466 U.S.
668, 687 (1984). To prove deficient
performance, the defendant must point to specific acts or omissions of the
lawyer that are “outside the wide range of professionally competent
assistance.” Id.,
466 U.S.
at 690. There is a “strong presumption
that counsel acted reasonably within professional norms.” State v. Johnson,
153 Wis. 2d
121, 127, 449 N.W.2d 845, 848 (1990).
¶17 To satisfy the prejudice aspect of Strickland,
the defendant must demonstrate that the lawyer’s errors were sufficiently
serious to deprive him or her of a fair proceeding and a reliable outcome. Strickland, 466 U.S. at 687,
694. (“The 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.”).
¶18 Conclusions by the trial court whether the lawyer’s performance
was deficient and, if so, prejudicial, present questions of law that we review de novo. Johnson, 153 Wis. 2d at 128, 449
N.W.2d at 848. Finally, we need not
address both Strickland aspects if the defendant
does not make a sufficient showing on either one. Strickland, 466 U.S. at 697.
¶19 As we have seen, Westmoreland claims
that his lawyer ineffectively represented him by arguing inconsistent theories
in her summation. He does not claim, however, and therefore
we do not address, whether his lawyer was ineffective for arguing that
Westmoreland was “not involved” in the shooting at all. See State v. Allen, 2004 WI 106, ¶26
n.8, 274 Wis.
2d 568, 587 n.8, 682 N.W.2d 433, 442 n.8 (issue not argued is waived). Indeed, Westmoreland
argues on appeal that his trial lawyer should have taken “an all-or-nothing
approach” and should not have argued the lesser-included-crime instruction
given by the trial court at Westmoreland’s
request. As noted, Westmoreland does not
challenge on this appeal either the trial court’s giving that instruction or
his lawyer’s effectiveness for having asked for it. Thus, as with the wisdom of arguing that
Westmoreland was not involved in the shootings, we do not discuss these
matters. See ibid.
¶20 We start with the proposition that strategic decisions by a
lawyer are virtually invulnerable to second-guessing. Strickland, 466
U.S.
at 690. As the trial court recognized,
we must analyze the change of tack by Westmoreland’s
lawyer in her summation against the evidence as it existed at that time, not as
she might have hoped she could have accomplished when she gave her opening
statement. At that point, sticking with
the all-or-nothing approach set out in her opening statement would have been
largely suicidal. Thus, we agree with
the trial court’s conclusion in its decision denying Westmoreland’s motion for
postconviction relief “that it was a reasonable trial strategy for counsel to
argue an alternative defense based on reckless conduct.”
¶21 Westmoreland points to two Wisconsin cases that hold that a lawyer is not
ineffective for not arguing
inconsistent theories. See State
v. Kimbrough, 2001 WI App 138, ¶¶1, 32, 246 Wis. 2d 648, 653, 665, 630
N.W.2d 752, 754, 760; State v. Eckert, 203 Wis. 2d 497,
510, 553 N.W.2d 539, 544 (Ct. App. 1996) (decision to not request a
lesser-included-crime instruction). But
this is a different matter from saying that a lawyer is ineffective for doing so.
As Strickland reminds us, there is a “wide range of professionally
competent assistance,” id., 466 U.S. at 690, and the bar is
not very high, see Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (lawyer need not
be a Clarence Darrow to survive an ineffectiveness contention). Indeed, it is not uncommon for lawyers to
argue inconsistent defenses. See, e.g., State v. Nelis, 2007 WI
58, ¶20, 300 Wis. 2d 415, 424, 733 N.W.2d 619, 623 (“Nelis argued at trial that
the evidence did not show that he and Diane S. had sexual intercourse on the
night at issue. He further argued that,
even if they did have sexual intercourse that night, it was consensual.”).
¶22 What Westmoreland’s trial lawyer did here was within the “wide
range of professionally competent assistance,” see Strickland, 466 U.S.
at 690, and, given the overwhelming strength of the State’s case, was
“strategy” as a matter of law. Further,
as the trial court also concluded, given the strength of the State’s case,
persisting with the original all-or-nothing approach would not have led
reasonable jurors to conclude that the State had not proven Westmoreland
guilty beyond a reasonable doubt. Thus,
as a matter of law there was also no Strickland “prejudice,”
that is, the change of tack by Westmoreland’s lawyer
in her closing argument did not “undermine confidence” in the trial’s
outcome. See Strickland, 466 U.S. at
694. Accordingly, we affirm.
By the Court.—Judgment, corrected judgment, and order affirmed.