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COURT OF APPEALS
DECISION
DATED AND FILED
March 9, 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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Clifford Dewayne Walker,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: WILLIAM
M. BRASH, III, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 KESSLER, J. Clifford Dewayne Walker
appeals from a judgment of conviction for first-degree reckless homicide by use
of a dangerous weapon, attempted armed robbery with threat of force, and
possession of a firearm by a felon, contrary to Wis. Stat. §§ 940.02(1), 939.63, 943.32(2), 939.32 and
941.29(2) (2005-06). He also appeals from an order denying his
motion for postconviction relief. Walker argues he is entitled to a new trial on several
bases: (1) the State violated his
discovery rights under Brady v. Maryland, 373 U.S. 83
(1963); (2) there is newly discovered evidence; (3) his trial counsel was
ineffective; and (4) the real controversy was not fully tried and it is probable
that justice miscarried. We reject these
arguments and affirm.
BACKGROUND
¶2 Walker was charged with
several crimes related to the shooting death of Antoine Nichols, which occurred
in a car near a gas station. The case
proceeded to a court trial.
¶3 The State’s theory at trial was that Walker
got into the back seat of a car at a gas station to buy marijuana from the
driver, Nichols, and a man named Brandon Johnson, who was sitting in the front
passenger seat. The State asserted that Walker tried to rob the two men, a scuffle ensued and
Nichols was fatally shot. In contrast, Walker’s
defense was that he got into the car to buy marijuana, Nichols and Johnson
tried to rob him and Nichols was shot while Walker
attempted to disarm him.
¶4 The State presented numerous witnesses at the trial,
including Johnson and Jameell McKee, a man who observed Walker
at the gas station. McKee testified that
Walker asked him if he had any marijuana and McKee
told him no. McKee said Walker then walked past him and went to a pay phone, picked
up the receiver “and just started talking on the phone” without having dialed
any numbers, which McKee thought was strange.
McKee then proceeded to the gas station store to buy snacks.
¶5 McKee said that before he entered the gas station store, Nichols
and Johnson drove up. McKee said he was
“good friends” with Johnson and knew Nichols by reputation. McKee said that when he left the gas station
store, he saw Walker still talking on the
phone and asking people at the gas station whether they had marijuana. McKee said that as he stood talking to a
friend, he saw Walker walk toward Nichols’s
car. McKee testified that he saw Walker pass up the opportunity to get into the
passenger-side rear door in favor of getting in behind the driver, which McKee thought
was “odd.” He said Walker
also “turned to the side instead of ... getting directly [seated] in the car,”
which led McKee to believe that Walker had something,
perhaps a gun, in his waistband.
¶6 McKee said he saw the car leave the gas station and within a
minute, he heard gunshots. McKee said he
was at a distance of approximately five houses away and he could see flashes in
the car. He said he saw the men exit
through the car’s back door and that they were “tussling.” McKee said it appeared the men were “trying
to grab for a gun.” McKee testified that
eventually, he saw Nichols lying on the ground where the tussle had
occurred. McKee said that he saw Johnson
run away and that he watched as Walker, who had a gun, “went through [Nichols’s]
pockets” and then ran away.
¶7 Johnson, who was in the car during the shooting, also testified. He said that he and Nichols were at the gas
station at about half past midnight when Walker
approached Nichols to see if Nichols would sell him some marijuana. Johnson said Walker
got in the back seat and Nichols drove away from the gas station.
¶8 Johnson said that Nichols pulled the car over, accepted money
from Walker and gave Walker
the marijuana. Then Walker
said something like “break yourself,” which Johnson understood to mean that Walker was attempting to rob Johnson and Nichols. Johnson said there was a scuffle and Walker grabbed Nichols from behind, “trying to choke
him.” Johnson said he and Nichols both fought
with Walker, sometimes by leaning into the back
seat or going into the back seat.
¶9 Johnson said that Walker had
a gun and during the struggle he “started shooting,” and Nichols got shot. Eventually, all three men exited through one
of the rear car doors as they struggled with one another. Johnson said that he could not see well in
the dark and that he was not sure how Nichols got out of the car, given that he
had already been shot. Johnson said he
knocked the gun out of Walker’s hands, but Walker picked it back up and then proceeded to go through
Nichols’s pockets, taking money.
¶10 Johnson said after Walker went
through Nichols’s pockets, he turned to Johnson, pointed the gun at him and
said, “[W]hat you got[?]” Johnson said
he told Walker he did not have any money and
then ran home, called 911 to report the incident and drove back to the scene in
his car. When he arrived, he saw
paramedics trying to resuscitate Nichols.
He also spoke with police officers about what had occurred.
¶11 The defense presented two witnesses: Walker and a woman who heard the gunshots and
observed the men. Walker
testified that he did not have a gun with him the night of the shooting and
that he never pulled the trigger of any weapon that night. Walker said
that he was left-handed and that on the night of the shooting, his left hand
was wrapped in gauze because he had previously injured it and had stitches.
¶12 Walker admitted that he was
trying to buy marijuana, which he said was for his ex-girlfriend. He said that while he was at the gas station,
he saw a man he later came to know as McKee.
Walker said he asked McKee if he had
any marijuana to sell. Walker
testified that McKee said no and then went to Nichols’s car, spoke with Nichols
and subsequently directed Walker’s attention
to Nichols. Walker
said he spoke with Nichols, who was seated in the driver’s seat, about
purchasing marijuana. Walker
said Nichols directed him to get into the back seat and Walker
did so.
¶13 Walker said the car pulled
away from the gas station and Walker got his
money ready to make the purchase. Walker said he noticed they were driving away from where
he needed to catch a bus. Walker testified that he said, “‘Hold up. Where [are] you all going?’” There was no response and Walker
then told Nichols and Johnson to stop the car.
Walker testified that after the car
stopped,
Nichols “half turned, and with a gun in his hand, in between the two [front]
seats had a gun in his hand pointed at me and told me to break myself.” Walker
testified that he said, “What?” and then grabbed Nichols’s hand and the
gun. Walker
said a struggle ensued, with both Nichols and Johnson fighting from the front
seat.
¶14 Walker said that Nichols had
the gun in his hands and that the gun was fired. Walker said
after the first gunshot, all three men kept fighting. Walker said
he heard two or three more gunshots and he knew he was not hit, because his
“purpose in grabbing [Nichols’s] hand was to make sure the barrel of that gun
was never pointed in my direction.” Walker denied that he ever held the gun “independently” in
his hand at any time while the men were in the vehicle. He testified that the shots were fired with Nichols
holding the gun, while Walker was trying to
“twist the gun around out of [Nichols’s] hand.”
¶15 Walker said he and Nichols
ended up outside the vehicle, and that he did not see where Johnson went. Walker said
he did not have the gun, did not pick up Nichols’s gun, did not tell Johnson to
give him money and did not go through Nichols’s pockets. Walker said
he ran home. He said he did not call the
police because he knew that he was on extended supervision from prison and he
did not care about helping Nichols because “[t]hey just tried to rob me and
then tried to kill me when I wouldn’t give up my money.” Walker said
he left town a couple of days later and went to Appleton,
where he was eventually arrested.
¶16 At the time of his arrest in Appleton, Walker
was carrying a gun that was the same type of gun that fired the shot that
killed Nichols.
Walker
said that one of the officers arresting him “got very excited, started jumping
up and down ... [saying] ‘Oh, is this a .38?
Is this a .38’?” Walker said he told the officer, “I didn’t shoot anybody
with this gun.”
¶17 The second defense witness was a woman who lived near the
location where Nichols was shot. She
testified that she heard shots, looked out her front door and saw a car in
front of her house that was “just rolling forward.” The car stopped a few doors down from the woman’s
house and she could see the driver’s side of the vehicle. She said she saw the car door swing open and
“a man was slumped forward, was pushed out onto the ground, and then two people
piled out after him.” She said the
slumped man “never moved.” She said she
went to call 911 and later continued to observe the two men by the car. She testified that she saw one of the men
bend over the man who was lying on the ground.
¶18 After the conclusion of testimony, the parties submitted
written closing arguments that summarized the testimony. At the same time, Walker personally wrote a
series of letters to the trial court in which he presented a number of
arguments concerning the facts and directed the trial court’s attention to a report
written by Daphne Moutry-Allen, an investigator for the medical examiner’s office,
which stated that officers told her that when Johnson was questioned at the
scene, he did not initially say that drugs were involved and instead told
officers that Walker was borrowing a cell phone.
¶19 In response to receiving Walker’s
letters, the trial court held a hearing where it asked the parties whether they
believed it should consider the information in Walker’s
letters. Trial counsel told the trial
court that he had made strategic decisions about what to argue in closing and
that he did not want the trial court to consider anything Walker
submitted. The trial court agreed, but
told the parties that if they wanted to revisit closing arguments or supplement
them, the parties could agree to do so. No
subsequent documents were filed with the trial court.
¶20 In an oral decision, the trial court found Walker
guilty of the charged crimes. The trial
court reviewed the evidence and made a specific finding that Walker’s
testimony was incredible. The trial
court stated that it:
finds [Walker’s] testimony to be incredible both with
regards to how these issues unfolded, the injuries that were ultimately
received by Mr. Nichols, the fact that [Walker] indicated that he had never
touched the gun at any point in time which seems ... inconsistent with what
occurred, and looking at everything, not just the individual injuries of Mr. Nichols,
but also the hole on the roof of the car, the other damage to the car and how
everything unfolded with regards to these matters, I find Mr. Walker’s
testimony to be incredible.
The trial court then continued:
Again it’s not to say that the
other witnesses ... didn’t have other points where they were also inconsistent
or [had testimony that] differed from the testimony of other witnesses, but I
did find that the State, after considering all the factors the court has to
take a look at with regards to these matters, has met their burden of proof
with regards to each and every [charge].
¶21 Walker was found guilty and sentenced as follows: thirty years of initial confinement and ten
years of extended supervision for the first-degree reckless homicide; three
years of initial confinement and three years of extended supervision for being
a felon in possession of a firearm, concurrent to the first-degree reckless
homicide; and five years of initial confinement and five years of extended
supervision for the attempted armed robbery by use of force, consecutive to the
other counts and to any other sentence.
¶22 Walker secured postconviction
counsel and filed a postconviction motion seeking a new trial, alleging several
bases for relief, including ineffective assistance of trial counsel. The State requested a hearing on the motion
so that trial counsel could provide testimony.
A Machner
hearing was conducted, which included testimony from trial counsel and several
others. Ultimately, the trial court
denied Walker’s postconviction motion in an
oral decision, for reasons discussed below.
This appeal follows.
DISCUSSION
¶23 Walker argues that he is
entitled to a new trial on several bases:
(1) the State allegedly withheld Brady evidence;
(2) the alleged Brady evidence constitutes newly
discovered evidence; (3) his trial counsel was ineffective; and (4) the real
controversy was not fully tried and it is probable that justice
miscarried. We consider each argument in
turn.
I. Alleged withholding of Brady evidence by the State.
¶24 Walker asserts that the State
committed a Brady violation and that he is therefore entitled to a new
trial. Brady held that “under
the Due Process Clause of the Fourteenth Amendment, a defendant has a
constitutional right to evidence favorable to the accused and that a
defendant’s due process right is violated when favorable evidence is suppressed
by the State either willfully or inadvertently, and when prejudice has
ensued.” State v. Harris, 2008 WI
15, ¶61, 307 Wis. 2d 555, 745 N.W.2d 397. Harris explained:
Prejudice means that “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A
‘reasonable probability’ is a probability sufficient to undermine confidence in
the outcome.” In other words, “strictly
speaking, there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.”
Id.
(citations and footnotes omitted).
¶25 The alleged Brady violation in this case does
not stem from the withholding of police reports. Rather, Walker
argues the alleged violation occurred when the detective who interviewed
Johnson did not include in his written report a reference to the fact that when
he first started talking with Johnson at the scene, Johnson did not mention a
drug transaction and instead said that Walker had
approached the car to borrow a cell phone.
Walker asserts that the detective, Tom Casper,
thus “withheld evidence from his report” and that this was a “failure to turn
over Brady
material [which] denied Walker his
right to due process.”
¶26 We begin our analysis of Walker’s
argument by disagreeing with his suggestion that the State conceded that there
was a Brady violation in its response brief to Walker’s
postconviction motion. We do not read
the State’s brief as conceding a Brady violation. Rather, the State asserted that it had turned
over all written reports. It did not
dispute the fact that there was no written police report that discussed
Johnson’s initial story, but it also did not concede that failure to include
that information constituted a Brady violation.
¶27 Next, we consider whether the defense was actually deprived of
evidence that was “favorable to the accused.”
See Harris, 307 Wis. 2d 555, ¶61. The
defense had a copy of the medical examiner’s investigator’s report explaining
that officers told the investigator that Walker
had changed his story. Thus, Walker was not deprived of the evidence concerning
Johnson’s initial story.
¶28 Even assuming for purposes of this appeal that Casper should have included the information in his
report, Walker has failed to prove that the incompleteness
of Casper’s report was prejudicial. Trial counsel testified at the Machner
hearing that he was given a copy of the medical examiner’s investigator’s
report and that he reviewed it prior to trial.
Trial counsel said he was aware that
officers reported they had been told a different story by Johnson when they
first spoke with him. Trial counsel said
he made a conscious decision not to raise that issue at the trial. In light of that fact, we cannot conclude
that if a more complete report by Casper had
“been disclosed to the defense, the result of the proceeding would have been
different.” See Harris, 307 Wis. 2d 555,
¶61. For this reason, Walker
is not entitled to relief on this ground and we affirm the trial court’s order
rejecting Walker’s Brady argument.
II. Newly discovered evidence.
¶29 Walker argues that Johnson’s
initial statement that Walker approached the
car to borrow a cell phone is newly discovered evidence that entitles him to a
new trial. The decision to grant or deny
a motion for a new trial based on newly discovered evidence is committed to the
trial court’s discretion. State
v. Plude, 2008 WI 58, ¶31, 310 Wis. 2d
28, 750 N.W.2d 42. Plude held:
When moving for a new trial based on the allegation of
newly-discovered evidence, a defendant must prove: “(1) the evidence was discovered after
conviction; (2) the defendant was not negligent in seeking the evidence; (3) the
evidence is material to an issue in the case; and (4) the evidence is not
merely cumulative.”
Id.,
¶32 (citation omitted). As noted above,
the fact Johnson initially told officers that Walker
wanted to borrow a cell phone was not discovered after conviction. This information was in the medical examiner’s
investigator’s report and was known to trial counsel. Walker has
failed to satisfy the principle factor identified in Plude and, therefore, his
request for a new trial based on newly discovered evidence fails.
III. Alleged ineffective
assistance of counsel.
¶30 Walker seeks a new trial on grounds that his trial counsel
provided ineffective assistance in four ways:
(1) ineffectively cross-examining Johnson; (2) failing to file a
discovery demand; (3) allowing a detective to vouch for Johnson’s credibility;
and (4) failing to alert the trial court that it had relied on facts not in
evidence to reach its decision on Walker’s guilt.
¶31 To establish an ineffective assistance of counsel claim, a
defendant must show both that trial counsel’s performance was deficient and
that he was prejudiced by the deficient performance. Strickland v. Washington,
466 U.S. 668, 687 (1984). A reviewing court may dispose of a claim of
ineffective assistance of counsel on either ground. Id. at
697. We review the denial of an
ineffective assistance claim as a mixed question of fact and law. State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). We will not reverse the trial court’s factual
findings unless they are clearly erroneous.
Id. However, we review the two-pronged
determination of trial counsel’s performance independently as a question of law. Id. at 128.
¶32 With respect to trial counsel’s performance, there is a strong
presumption that counsel rendered adequate assistance. Strickland, 466 U.S.
at 690. Professionally competent
assistance encompasses a “wide range” of behaviors and “[a] fair assessment of
attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Id.
at 689. We will not “second-guess a
trial attorney’s ‘considered selection of trial tactics or the exercise of a
professional judgment in the face of alternatives that have been weighed by
trial counsel.’” State v. Elm, 201 Wis. 2d 452, 464, 549 N.W.2d 471 (Ct. App. 1996)
(citation omitted). “A strategic trial
decision rationally based on the facts and the law will not support a claim of
ineffective assistance of counsel.” Id. at 464-65.
¶33 With respect to the prejudice prong, the defendant must
demonstrate that “counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S.
at 687. In other words: “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.” Id. at 694. “The focus of this inquiry is not on the
outcome of the trial, but on ‘the reliability of the proceedings.’” State v. Thiel, 2003 WI 111, ¶20,
264 Wis. 2d 571, 665 N.W.2d 305 (citation omitted). “[I]n determining whether a defendant has
been prejudiced as a result of counsel’s deficient performance, [a court] may
aggregate the effects of multiple incidents of deficient performance in
determining whether the overall impact of the deficiencies satisfied the
standard for a new trial under Strickland.” Thiel, 264 Wis.
2d 571, ¶60. With these standards in
mind, we examine Walker’s ineffective
assistance claims.
A. Cross-examination of Johnson.
¶34 Walker argues that because credibility
“was of utmost importance,” trial counsel performed ineffectively when, without
good reason, he did not attempt to impeach Johnson with the fact that he
initially told the officers Walker had approached the car to borrow a cell
phone. At the Machner hearing,
postconviction counsel asked trial counsel about his cross-examination of
Johnson. Trial counsel testified that he
had recognized Johnson’s credibility was important and said, “That’s why the
cross-examination went the way it did.”
Trial counsel testified that he “made a determination as to what I
thought was significant, and that’s how I tried the case.” He said that he “would never have asked”
Johnson about the change in his story because he does not ask questions to
which he does not know the answer, and that instead, he asked “pointed
questions about the changes that I saw between his testimony and what he told
the detectives.” Trial counsel
acknowledged that he could have tried to impeach Johnson about the change in
his story, but explained the reason behind his strategic decision not to do so:
There’s a lot of impeachable questions in a trial. I make the decision on how I’m going to
impeach, when I’m going to impeach, and with what I’m going to impeach.
....
... [T]hat was the decision I
made. I felt it was the right
decision. I still feel that was the
right decision.
I’m not going to give Mr.
Johnson a chance to talk about whatever might come into his head, including, [“W]ell,
I changed my story because I was a little bit afraid, and then when the
detectives talked to me, I wasn’t quite as afraid.[”]
Or he could have come up with,
which probably was in there to a certain extent, [that “]I didn’t really want
the detectives knowing that I was dealing drugs so I kind of fudged that, and
then I realized that my friend’s dead so I really should come clean,[”] which
would have strengthened his testimony.
¶35 The trial court implicitly accepted trial counsel’s testimony
as credible, noting several times that trial counsel had made strategic
decisions when deciding whether to ask Johnson about his statements to police
about Walker wanting to borrow a cell phone. For instance, the trial court noted that
postconviction counsel “came to [the issue] ... with a different perspective
than [trial counsel] did, because [trial counsel] put a different value and
viewed that issue differently, and I think that the testimony will bear that
out.” The trial court further noted that,
based on trial counsel’s testimony, the trial court did not think that trial
counsel “saw that as a pivotal issue or a central issue.” We read the trial court’s comments as finding
that trial counsel made strategic decisions concerning this area of inquiry and
concluding that trial counsel’s strategic decisions were reasonable. We agree with the trial court.
¶36 As noted, “[a] strategic trial decision rationally based on the
facts and the law will not support a claim of ineffective assistance of
counsel.” Elm, 201 Wis. 2d at 464-65.
It is a reasonable trial strategy to focus on what counsel believes are
the strongest areas of impeachment and forego lesser areas of inquiry. It is also reasonable to avoid giving a
witness the opportunity to offer explanations that improve his
credibility. Trial counsel’s strategic
decision satisfies the standard noted in Elm and, therefore, Walker has failed to show that his trial counsel was
deficient.
¶37 Moreover, we agree with the trial court’s assessment that Walker has failed to show he was prejudiced by trial
counsel’s alleged error. The trial court
concluded that while the potential impeachment evidence may have affected Johnson’s
credibility, “looking at everything that was adduced during the course of the
trial[, it] would be of a minimal nature.
Thus, it would not materially affect the outcome of the trial.” Johnson was impeached in numerous ways, and
we agree with the trial court that the fact Johnson initially did not admit to
being involved in a drug transaction would not have so affected his credibility
that it can be said that “but for counsel’s unprofessional errors, the result
of the proceeding would have been different.”
See Strickland, 466 U.S. at 694. For
these reasons, we conclude that Walker has
failed to prove ineffective assistance of counsel.
B. Failing
to file discovery demand.
¶38 Walker faults trial counsel
for not filing a discovery demand and instead relying on an informal
arrangement with the State whereby trial counsel had access to the State’s
files. He argues that “[t]he prejudice
from not filing a discovery demand is abundantly evident because Walker never
received any reports from [Detectives] Blaszak and/or Casper explicating or
elaborating on the change in Johnson’s story that is noted in [Mouty-]Allen’s
report.”
¶39 There is no evidence in the record that either Blaszak or Casper ever wrote a report mentioning the change in
Johnson’s story. At the Machner
hearing, Casper said no such reports exist.
¶40 The trial court denied Walker’s
motion and we affirm. Walker
has not proven the prejudice prong of the Strickland test because he has not
shown how filing a discovery demand would have produced any reports that were
not already provided to trial counsel.
C. Failing
to object to Detective Chavez’s testimony.
¶41 Walker argues that trial
counsel should have objected to the testimony of Detective David Chavez, who
testified as follows when the State asked him questions about his on-the-scene
interview of Johnson:
Q: [H]ow did [Johnson] appear to you? What was his demeanor when you saw him that
night?
A: He was
upset.
Q: And was
he in custody at this time?
A: Not at
this time, no.
Q: Was he
ever in custody?
A: No.
Q: ... [W]hen you first arrived on [the] scene
and you saw [Johnson] ... were you informed that he had been involved in this
incident?
A: Yes.
Q: Was he a
potential suspect at that point?
A: Not at that point. We found out that he was the caller and a
witness that was inside the automobile at the time.
Q: And
why was that significant that he was the caller?
A: Not only was he the caller, but he
actually arrived back on the scene. That
made us believe that this was, you know, his friend who was shot and killed and
that he wanted to help.
Q: And what’s that based on, your
experience or your training?
A: Both.
....
A: ... This individual, Mr. Johnson,
wanted to help. And he was very concerned
about his friend.
¶42 In his opening appellate brief, Walker presented a
three-paragraph argument that his constitutional right to effective counsel was
violated when trial counsel did not object to Chavez’s testimony on grounds
that Chavez was allowed to improperly offer an opinion that Johnson was telling
the truth, contrary to State v. Jensen, 147 Wis. 2d 240, 432
N.W.2d 913 (1988), and State v. Haseltine, 120 Wis. 2d 92,
352 N.W.2d 673 (Ct. App. 1984). In
response, the State provided a detailed analysis of numerous cases in support
of its argument that Chavez’s testimony was not objectionable, which Walker then refuted in his reply brief.
¶43 Under Strickland, we “need not determine
whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” See
id.,
466 U.S. at 697 (“The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.”).
In this case, the prejudice prong is dispositive.
¶44 The following is Walker’s
entire argument on prejudice:
Here, Trial Counsel’s failure to know the rules of
evidence clearly prejudiced Walker because it
allowed the finder-of-fact to hear inadmissible testimony on an important
issue—credibility. Because Trial Counsel
allowed this bolstering of Johnson’s credibility, and also, failed to attack
Johnson’s credibility, Walker was deprived of
competent counsel and prejudiced.
While erroneously admitted
evidence that affects credibility may potentially
prejudice a defendant such that reversal is required, a reversal is not
automatic. Here, Walker’s
argument fails to prove “that there is a reasonable probability”—defined as “a
probability sufficient to undermine confidence in the outcome”—“that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” See id. at 694. As we have
stated before, “[a] showing of prejudice requires more than speculation.... The defendant must affirmatively prove
prejudice.” State v. Wirts, 176 Wis. 2d 174, 187, 500 N.W.2d 317 (Ct. App. 1993). Walker has
not even attempted to do so. Therefore,
his claim fails. See id.; see also State
v. Pettit, 171 Wis. 2d 627, 646-47,
492 N.W.2d 633 (Ct. App. 1992) (court will not address issues on appeal that
are inadequately briefed).
D. Failing
to correct the trial court’s findings of fact.
¶45 Walker’s final ineffective assistance argument relates to the
trial court’s statement, made during its oral decision finding Walker guilty,
that it found Walker’s testimony to be incredible in part because Walker
“indicated that he had never touched the gun at any point in time which seems
... inconsistent with what occurred.” In
his appellate brief, Walker identifies
numerous times during his trial testimony where he testified that he had
touched the gun, such as during the struggle with Johnson and Nichols. Walker does
not discuss the comments concerning this issue that the trial court offered at
the postconviction hearing. Rather, Walker
simply presents a three-sentence argument asserting that his trial counsel’s
failure to object during the trial court’s oral decision constituted
ineffective assistance of counsel, stating:
Walker
was prejudiced because Trial Counsel was ineffective for failing to alert the
Court that it had relied upon facts not in evidence to reach its decision.
The Trial Court erroneously
believed that Walker had claimed to have not
touched the gun that killed Nichols. The
Trial Court’s belief is not supported by the record, and Trial Counsel’s
failure to alert the Court that this belief was predicated on facts not in
evidence[] clearly prejudiced Walker.
(Emphasis omitted.) Walker has
not adequately briefed this issue. He
offers no explanation of how the alleged error by the trial court after the
evidence was complete was sufficiently prejudicial to justify a new trial,
especially in light of the trial court’s comments at the postconviction hearing
explaining that it was referring to Walker’s denial that he ever possessed the
firearm and not suggesting Walker denied touching the gun during the
struggle. We decline to address this
undeveloped argument. See Pettit,
171 Wis. 2d at 646-47; see also Wirts, 176 Wis. 2d
at 187.
IV. Discretionary reversal.
¶46 Walker seeks a new trial
pursuant to Wis. Stat. § 752.35,
the statute that allows this court to order a discretionary reversal “if it
appears from the record that the real controversy has not been fully tried, or
that it is probable that justice has for any reason miscarried.” See id.
“[U]nder the first category, when the real controversy has not been
fully tried, an appellate court may exercise its power of discretionary
reversal without finding the probability of a different result on
retrial.” Vollmer v. Luety, 156 Wis. 2d 1, 16, 456 N.W.2d 797 (1990). “Under the second category, however, an
appellate court must first find a substantial probability of a different result
on retrial before exercising its discretionary reversal power.” Id. As Walker
acknowledges, reversal under § 752.35 occurs “only in exceptional
cases.” See State v.
Cuyler, 110 Wis. 2d 133, 141, 327
N.W.2d 662 (1983).
¶47 Walker argues that a
discretionary reversal is justified here under both categories because trial
counsel was ineffective, the State withheld Brady evidence that is
also newly discovered and the trial court relied on facts not in evidence to
assess Walker’s credibility. We conclude that these arguments, which we
have already rejected, do not support a discretionary reversal.
¶48 Walker’s final claim is that
justice probably miscarried because the trial court’s credibility determination
rested in part on an erroneous finding that Walker
claimed he never touched the gun. At the
postconviction hearing, the trial court clarified its previous statement concerning
Walker’s contact with the gun. We conclude that the trial court’s previous misstatement
does not justify discretionary reversal.
The trial court found Walker’s
testimony incredible for numerous reasons.
Its correction of a single misstatement in its credibility assessment
does not lead us to conclude that here is “a substantial probability of a
different result on retrial” that would justify the exercise of our
discretionary power. See Vollmer,
156 Wis. 2d at 16.
By the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.