COURT OF APPEALS
DATED AND FILED
February 23, 2011
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
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
State of Wisconsin,
from a judgment and an order of the circuit court for Milwaukee County: dennis
r. cimpl, Judge. Affirmed.
Curley, P.J., Fine and Brennan, JJ.
¶1 BRENNAN, J. Sidney Clark appeals from
a judgment of conviction, entered after a jury found him guilty of armed
robbery, and from an order denying his postconviction motion. Clark asks us to: (1) remand this case for a Machner
because he alleges that his postconviction motion raised sufficient questions
of fact to demonstrate that his trial counsel was ineffective; or (2) reverse
his conviction and grant him a new trial because the trial court allegedly
erred when it denied Clark’s motion for a
mistrial. We affirm.
¶2 In March 2009, the State filed a criminal complaint charging
Clark with armed robbery for robbing the Sogal Mini Mart in Milwaukee on February 25, 2009. A four-day jury trial commenced.
¶3 Salado Noor, a
Somalian national who had been in the United States for only three years, was the
store clerk at the time of the robbery.
She testified that on February 25, Clark,
whom she immediately recognized as a regular customer, entered the mini-mart
and asked her if Aziz Ahmed, Noor’s boyfriend and the mini-mart’s owner, was
there. Noor told him Ahmed was not
then pointed a handgun at Noor and told her to give him the money in the cash
register. He then reached over the store
counter and was only inches away from Noor.
Clark grabbed approximately $400 from
the cash register before fleeing on foot.
¶4 Noor testified that she had a direct view of Clark when he was walking toward her and that she
immediately recognized him as a regular customer. Noor testified that since she began working
at the mini-mart in November 2008 Clark came in regularly, once or twice a day,
and that she had once overheard Clark telling
Ahmed that he had been fired from his job at State Farm a block away from the
mini-mart. Noor said that when Clark came into the mini-mart he was usually wearing a
hat or a hooded sweatshirt, but that she had seen his hair pulled back like it
was in court during the trial. At the
time of the robbery, Noor said Clark was
wearing a hooded sweatshirt and dark glasses.
Noor further testified that she was unsure of the robber’s race, that he
was “white or mixed,” but that he was not Caucasian.
¶5 Immediately after the robbery, Noor telephoned Ahmed. Ahmed called the police, and Milwaukee Police
Officer Mark Kubicek arrived at the mini-mart shortly thereafter. Officer Kubicek testified that Noor told him
the robber was male, in his 60s or 70s, wearing a grey hooded sweatshirt with
the hood up, and dark sunglasses. She
also told Officer Kubicek that the robber was familiar to her, and that he was
“white” or “mixed race.” Officer
Kubicek later testified that he believed Noor may have actually said “light” or
“mixed race” and that he had misheard her due to her accent.
¶6 Officer Kubicek also testified that Ahmed was standing nearby
when Officer Kubicek was interviewing Noor and “interrupt[ed] … trying to
contribute to the description of this known customer.”
¶7 Later that night, police showed Noor a photo line-up of
suspects. Noor selected Clark as the robber, stating that she was “100 percent
sure” of her identification.
¶8 The State also introduced the testimony of Carolyn Riccobono,
Clark’s supervisor at his job at
McDonalds. Riccobono testified that
Clark had told her that he was aware that police had come to McDonalds looking
for him, and that Clark told Riccobono “not to
tell anyone any of his business.”
¶9 Next, the State asked Riccobono if Clark “sa[id] anything in
addition to that” and Riccobono stated that Clark
“was giving me a schedule to fax over to a homeless shelter.” Clark’s counsel immediately objected because
the court had previously ruled that the jury should not hear any evidence about
Clark’s homelessness. After a sidebar, the court instructed the
jury to disregard the question and Riccobono’s response. Clark’s counsel later moved for a mistrial,
arguing that the State’s question was intentionally designed to elicit a
response about Clark’s homelessness and that the jury would unfairly assume
that because Clark was staying at a homeless
shelter, he committed the robbery. The
trial court denied Clark’s motion, concluding
that the State’s question had not been in bad faith and there were not
sufficient grounds for granting a mistrial.
¶10 Clark was the only witness to
testify for the defense. He testified
that on the day of the robbery he picked up his paycheck from McDonalds between
9:00 a.m. and 11:00 a.m., took a bus to a bank on Wisconsin Avenue to cash his
check, then took a bus to the Grand Avenue Mall, then took another bus to the Bayshore
Mall where he stayed for one and one-half to two hours, and then finally took a
third bus to Brookfield.
¶11 Clark also testified that he
had been employed by the State Farm insurance agency one block from the
mini-mart and had been fired in August 2008.
He stated that after he was fired he did not “hang out” on Martin Luther King Drive,
where the Sogal Mini Mart and the State Farm were located, but that until he
was fired he had gone to the mini-mart “different times in different months …
[u]p until August 24th or 25th.” Clark also testified that “[t]here was no woman that
worked [at the Sogal Mini Mart]” when he visited, and that he had “never seen”
¶12 Clark’s counsel did not ask
him whether he robbed the mini-mart. Nor
did Clark’s counsel ask if he was at the
mini-mart at any time the day of the robbery.
¶13 The jury found Clark guilty of
armed robbery, and judgment was entered accordingly.
¶14 Clark filed a motion for
postconviction relief arguing that his trial counsel was ineffective for not
asking him whether he committed the robbery.
Attached to his motion was an affidavit signed by his appellate counsel,
averring that Clark’s trial counsel stated that he did not ask Clark whether he
committed the robbery because “it was not his focus at trial” and that his
focus was “on trying to show the identification by Noor was mistaken, and on
showing what Clark normally did with his time.”
The affidavit further asserted that Clark’s trial counsel stated that
Clark “consistently maintained his innocence” and that trial counsel did not
omit the question because he believed it would encourage Clark
to perjure himself. The trial court
denied Clark’s postconviction motion without a
hearing, concluding that “any failure on the part of trial counsel to submit
this question to the defendant during the trial did not prejudice the
defendant’s case.” This appeal
¶15 Clark now asks us to: (1) remand this case back to the trial
court for a Machner hearing because he alleges his trial counsel was
ineffective for failing to ask Clark whether he robbed the mini-mart; or (2)
remand this case back to the trial court for a new trial because the trial
court erred in not granting a mistrial when Riccobono made reference to the
homeless shelter where Clark was staying.
We will address each in turn.
A. Ineffective Assistance of Counsel
¶16 Clark first argues that his
postconviction motion raised sufficient questions of fact to entitle him to a Machner
hearing on whether his trial counsel was ineffective. Because we conclude that the facts he raises
in his postconviction motion demonstrate that even if his counsel was
deficient, the outcome of the trial was not prejudiced by that deficiency, we affirm.
defendant claiming ineffective assistance of counsel must establish that: (1) the lawyer was deficient; and (2) the defendant
suffered prejudice as a result. Strickland
v. Washington, 466 U.S. 668, 687 (1984).
Because a defendant must show both deficient performance and prejudice,
reviewing courts need not consider one prong if the defendant has failed to
establish the other. Id. at 697.
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. 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 (1990).
“‘Effective representation is not to be equated, as some accused
believe, with a not-guilty verdict. But
the representation must be equal to that which the ordinarily prudent lawyer,
skilled and versed in criminal law, would give to clients who had privately
retained his [or her] services.’” State
v. Felton, 110 Wis.
2d 485, 500-01, 329 N.W.2d 161 (1983) (citation omitted).
satisfy the prejudice aspect of Strickland, the defendant must
demonstrate that the lawyer’s errors were sufficiently serious so as to deprive
him or her of a fair trial and a reliable outcome, Johnson, 153 Wis. 2d at
127, and “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different,” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
review the denial of an ineffective assistance claim as a mixed question of
fact and law. Johnson, 153 Wis. 2d at 127. 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.
postconviction hearing is necessary to sustain a claim of ineffective
assistance of counsel. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App.
1979). A defendant’s claim that counsel
provided ineffective assistance does not, however, automatically trigger a
right to a Machner hearing. See State v. Curtis, 218 Wis. 2d 550, 555 n.3,
582 N.W.2d 409 (Ct. App. 1998). A trial
court may deny a postconviction motion without a hearing “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.” State
v. Allen, 2004 WI 106, ¶9, 274 Wis.
2d 568, 682 N.W.2d 433. Whether a motion
was sufficiently supported to warrant an evidentiary hearing is a legal issue
that we review de novo. State v. Bentley, 201 Wis. 2d 303, 309-10, 548
N.W.2d 50 (1996).
¶22 Clark argues that had his trial counsel asked him whether
he committed the robbery at the mini-mart he would have expressly denied
committing the crime, and that his denial would have rebutted Noor’s testimony
to the contrary. Clark
further contends that these are sufficient facts to entitle him to relief and
that the trial court should have granted him a Machner hearing. In short, we conclude that Clark
does not set forth sufficient facts to entitle him to relief. Clark
implicitly denied committing the robbery, and there is not a reasonable
probability that expressly denying that he committed the robbery would have
resulted in a different verdict given the strength of Noor’s identification.
that Clark denied committing the robbery was
implicit in his testimony. Clark testified that he had not been in Sogal’s mini-mart
since he was fired from State Farm in August 2008, six months before the
robbery was committed. Clark
also denied ever having met or seen Noor. And he testified that the day of the robbery
he picked up his paycheck from McDonalds between 9:00 a.m. and 11:00 a.m.,
took a bus to a bank on Wisconsin Avenue to cash his check, then took a bus to
the Grand Avenue Mall, then took another bus to the Bayshore Mall where he
stayed for one and one-half to two hours, and then finally took a third bus to
Brookfield. At no time did he state or
otherwise suggest that he had gone to the mini-mart the day of the robbery—in
fact, he testified that he had not been there in six months. Even without an explicit denial that he
robbed the mini-mart, it is evident from his testimony that he did in fact deny
Clark’s credibility was questionable. Even if Clark
had explicitly testified that he did not rob the mini-mart, he concedes that “a
defendant’s denial that he did not commit the crime must be viewed with some
degree of caution, [because] it is in his self-interest.” Moreover, the jury had been informed that Clark had been convicted of seven prior crimes, and his
testimony was at odds with Noor’s, who had no apparent motive to lie. In other words, it is unlikely that Clark’s express testimony that “it wasn’t him” would have
the State had built a strong case against Clark
based upon Noor’s identification. While
Clark entered the mini-mart wearing a hooded sweatshirt with the hood up and
dark sunglasses, Noor testified that she immediately recognized Clark because
he had come into the mini-mart once or twice a day since she began working there
in November 2008, and he was merely inches away from her when he reached over
the counter. Moreover, Noor recognized Clark’s voice from his previous visits to the mini-mart
and conversations with Ahmed. From the
beginning, Noor was “100 percent sure” that Clark
was the robber and she identified him as such in the photo line-up.
reject Clark’s argument that Noor’s
identification was “problematic” because “[t]he entire incident took a short
amount of time, and the robber was covered by a hood and wearing dark
sunglasses. [And] Noor described the
robber as white, although Clark is black.” Based on Noor’s numerous contacts with Clark, as described above, it is not surprising that she
would recognize him even though he was wearing a hood and sunglasses. And Officer Kubicek explained that although
he initially believed that Noor said the robber was “white” or “mixed race”
he later believed she said “light” or “mixed race.” Officer Kubicek explained that the “language
barrier” resulting from Noor’s accent led him to believe that Noor said “white”
or “mixed race” when in fact she likely said “light” or “mixed race.” However, Noor testified that she was “unsure”
of Clark’s race. And regardless of how Noor identifies Clark’s race, she recognized him as a regular customer of
the mini-mart who was fired from State Farm, and identified him in a photo
do we find Noor’s identification “problematic” because Ahmed “interrupted” when
Noor was attempting to describe Clark to the
police. Noor had told Ahmed that the
robber was a customer who visited the mini-mart often, and who had been fired
from State Farm. Ahmed surmised that the
robber was Clark because “there’s nobody else” other than Clark
“who said he got fired from State Farm that we know.” But this fact does not “impeach” Noor or
otherwise make her identification unreliable as Clark
suggests. Ahmed had learned the robber’s
identity from Noor. His interruption
does not make Noor less credible.
summary, we reject Clark’s assertion that his
trial counsel’s failure to ask him outright whether he robbed the mini-mart
sets forth a claim for ineffective assistance of counsel. See
274 Wis. 2d
568, ¶9. Even without the question, it
was clear from Clark’s other testimony that he
was denying committing the robbery.
There is not a reasonable probability that Clark’s
self-serving testimony that he did not do it could have overcome the strength
of Noor’s identification. See Strickland, 466 U.S. at 694.
¶29 Next, Clark argues that the trial court erroneously exercised
its discretion when it denied his motion for a mistrial after the jury heard
testimony that may have indicated Clark was homeless. Because the trial court directed the jury to
disregard the reference, and regardless, because the reference was not
sufficiently prejudicial to warrant a mistrial, we affirm.
¶30 A motion for a mistrial is addressed to the sound discretion of
the trial court, and its decision will be reversed only upon a clear showing of
an erroneous exercise of discretion. Haskins
v. State, 97 Wis.
2d 408, 419, 294 N.W.2d 25 (1980). In
considering a motion for a mistrial, the “trial court must determine, in light
of the whole proceeding, whether the claimed error was sufficiently prejudicial
to warrant a new trial.” State
v. Sigarroa, 2004 WI App 16, ¶24, 269 Wis. 2d 234, 674 N.W.2d 894.
¶31 Not all errors warrant a mistrial, and “the law prefers less
drastic alternatives, if available and practical.” State v. Bunch, 191 Wis. 2d 501, 512, 529
N.W.2d 923 (Ct. App. 1995). For
instance, there is no erroneous exercise of discretion when, in lieu of a mistrial,
the court cures potential prejudicial effect by instructing the jury to
disregard an improper statement. Haskins,
97 Wis. 2d at
¶32 Here, during a sidebar immediately prior to her testimony, the
trial court instructed the State not to elicit answers from Riccobono that
would reference Clark’s homelessness. After she took the stand, the State asked
Riccobono a question calling for an answer about what Clark
said to her—“Did he [Clark] say
anything in addition to that?” Riccobono
then answered about what he did—“He
at the time of the conversation he was giving me a schedule to fax over to a
homeless shelter.” Clark’s
counsel immediately objected, and the court called another sidebar. Afterwards, back on the record and in the
presence of the jury, the trial court properly exercised its discretion by
instructing the jury to disregard both the State’s question and Riccobono’s
answer. We presume that juries follow
the instructions given to them. State
v. Johnston, 184 Wis.
2d 794, 822, 518 N.W.2d 759 (1994). And
therefore we conclude that the jury disregarded Riccobono’s reference to the
¶33 Moreover, Riccobono’s offhanded reference to a homeless shelter
is not sufficiently prejudicial to warrant a mistrial. Clark argues “that the jury would unfairly
assume that because Clark was staying at a
homeless shelter, he committed the robbery in this case.” That argument is conclusory. First, it is not clear from Riccobono’s
answer that the jury would necessarily conclude that Clark
lived at the homeless shelter—perhaps he worked at the shelter or there was
some other reason for Riccobono to fax his schedule there. Second, even if the jurors inferred that
Clark was homeless, while Clark’s apparent
homelessness may have led some jurors to have a negative view of him or impute
a motive for theft, it is equally plausible that knowledge of his homelessness
invoked empathy from the jurors. Given
Noor’s eyewitness identification, Clark’s admission that he frequented the
mini-mart, and Clark’s failure to corroborate
his alibi, the strength of the State’s case was unaffected by any negative
inference from an indirect reference to the homeless shelter. In sum, the prejudicial effect of the
statement, if any, was minimal at best and is not sufficient to warrant a new
By the Court.—Judgment and order
recommended for publication in the official reports.