COURT OF APPEALS
DATED AND FILED
March 29, 2011
A. John Voelker
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 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.
IN COURT OF APPEALS
Christopher Donnell Jones,
from a judgment and an order of the circuit court for
¶1 CURLEY, P.J. Christopher Donnell Jones appeals the judgment convicting him of heroin delivery and possession. He also appeals the order denying his postconviction motion. Jones contends the trial court erred in denying his postconviction claim for an evidentiary hearing and a new trial because his postconviction claim sufficiently alleged that his trial counsel was ineffective. Specifically, Jones argues that: (1) trial counsel was ineffective for failing to introduce the arrest detention report and supplemental incident report and for failing to cross-examine the authors about the contents of these reports; (2) trial counsel was ineffective for failing to investigate Jones’s case further and introduce additional evidence; (3) trial counsel was ineffective for failing to object to prejudicial hearsay testimony; and (4) the trial court erred by not addressing the cumulative effect of trial counsel’s deficient conduct. We affirm.
A. Jones’s First Jury Trial
¶2 On October 18-20, 2006, Jones was tried by a jury on two charges. He was charged with delivery of heroin, contrary to Wis. Stat. §§ 961.14(3)(k) and 961.41(1)(d) (2005-06), arising from a transaction with undercover Milwaukee Police Officer Wardell Dodds. He was also charged with drug possession, contrary to Wis. Stat. § 961.41(3g)(am) (2005-06), for heroin discovered in a crawl space in the bedroom where police found him shortly after the transaction. The case resulted in a hung jury, and a second trial took place on February 12-13, 2007.
B. Jones’s Second Jury Trial and Postconviction Motion
¶3 At Jones’s second trial, Officer Dodds testified that while
working undercover on June 22, 2006, he told someone on the street that he was
looking for heroin. That person gave
Dodds the number of a potential dealer.
Dodds called the number and spoke with a man who told him to come to
¶4 After he had initially contacted Jones and conferred with
¶5 Dodds then left the area and briefed
¶6 Dodds’s partner, Officer Wilson, observed the buy.
¶7 Officer John Bryda recovered the buy money. Bryda testified that he and another officer
¶8 Officer Jay Jackson helped secure the residence that Jones
went into after the buy.
¶11 The jury convicted Jones on both counts. On March 6, 2008, the trial court sentenced Jones to six years of imprisonment on count one (three years’ initial confinement and three years’ extended supervision) and two years of imprisonment on count two (one year of initial confinement and one year of extended supervision), to be served concurrently with count one.
¶12 Jones then filed a Wis. Stat. Rule 809.30 postconviction motion requesting a new jury trial. The court denied Jones’s postconviction motion, and Jones now appeals.
¶13 On appeal, Jones challenges the trial court’s refusal to hold a Machner hearing on his ineffective assistance of counsel claims from his postconviction motion. He also argues that the cumulative effect of his three ineffective assistance claims warrants a Machner hearing.
Standard of Review
¶14 The specific question before this court is whether the trial
court properly denied Jones’s ineffective assistance claim without first
holding an evidentiary hearing. See State
v. Machner, 92
First, [courts] determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief. This is a question of law that [appellate courts] review de novo. If the motion raises such facts, the circuit court must hold an evidentiary hearing. However, 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, the circuit court has the discretion to grant or deny a hearing.
¶15 Because the issue of ineffective assistance of counsel is
intertwined with this issue, Jones must also allege a prima facie claim of ineffective assistance of counsel, showing
that trial counsel’s performance was deficient and that this deficient
performance was prejudicial. See State
v. Wesley, 2009 WI App 118, ¶23, 321
¶16 With these standards in mind, we consider Jones’s arguments concerning trial counsel’s ineffectiveness.
A. Trial counsel was not
ineffective for failing to introduce the arrest detention
report and the supplemental police report, or for failing to cross-examine the
officers about the contents of these reports.
¶17 Jones argues that trial counsel was ineffective for failing to
introduce Officer Wilson’s arrest detention report and Officer Dodds’s
supplemental incident report and for failing to question the authors about
facts that do not appear in the reports.
Specifically, Jones points out that the arrest detention report does not
mention a number of facts that police testified to at trial, including: (a)
contacting Jones by cell phone; (b) seeing Jones on the porch; (c) observing a
green Pontiac with two other occupants; (d) approaching the Pontiac and
conducting warrant checks and interviews with the individuals inside; and (e) recovering
prerecorded buy money from a green Pontiac and then placing it in
inventory. Jones also notes that Dodds’s
supplemental incident report does not mention:
(a) seeing Jones on the porch; (b) observing two other occupants in the
¶18 We disagree. The omission of these reports did not prejudice Jones’s case. This is not a case where, as noted in Richards, “conflict between the reports and the testimony” or even “omission from the reports of facts related at the trial” would have been “relevant and material to [Jones’s] case.” See id. (some quotation marks omitted). The arrest detention report, for example, only summarized the most basic facts about the incident. Indeed, by its very nature—including the fact that the space for the officer’s narrative was quite limited—one can plainly see that it was not intended to contain every detail of every fact observed by every on-scene officer. Similarly, Dodds’s report reads more like a summary than a detailed account of the events, and the facts omitted from them had nothing to do with the actual transaction.
¶19 Moreover, even if the reports had been admitted, and even if
the officers had been cross-examined regarding the reports’ omissions, the best
that trial counsel might have done would have been to show that the police
reports were not very thorough. Counsel
would not have overcome the strong evidence of guilt in this case, including
eyewitness testimony from two officers of a hand-to-hand transaction, drugs
obtained from the hand-to-hand transaction, and a defendant who later
inculpated himself during booking. In
other words, the record conclusively demonstrates that Jones was not prejudiced
by trial counsel’s failure to introduce and cross-examine the officers on the
reports. See Strickland, 466
B. Trial counsel was not
ineffective for failing to conduct additional investigation
and to introduce additional evidence.
¶20 Jones next argues that counsel was ineffective for failing to conduct an investigation that would have yielded: (1) two computer automated dispatch logs; (2) the arrest detention report and supplemental police report; and (3) Milwaukee Police property inventory #333541. According to Jones, these documents—if read together—would have shown that police: (a) may have mistakenly tested and linked to Jones suspected heroin recovered from another defendant arrested the same day; and (b) falsified reports to cover their mistake. Jones grounds his theory in the fact that the Crime Lab report regarding property inventory #333541—which refers to a recovered substance determined to be heroin—links the heroin to two suspects, Jones and the other June 22, 2006 arrestee. He also points out that there are at least two police incident numbers on reports related to Jones’s June 22, 2006 arrest.
¶21 We are not persuaded.
First, Jones’s allegations about falsified reports are completely
unsubstantiated by any evidence in the record and we will not consider
them. See State v. McMorris, 2007 WI App 231,
C. Trial Counsel was not
ineffective for failing to object to Officer Bryda’s
testimony regarding two suspects in the green
¶22 Jones argues that trial counsel failed to move to strike, as non-responsive and as hearsay, Bryda’s testimony that the occupants of the green Pontiac denied that the money was theirs. He also argues that trial counsel failed to object on hearsay grounds to the prosecutor’s question on redirect examination and Bryda’s response regarding whether the vehicle’s occupants denied that the money was theirs. At the first trial, counsel objected to this question and the court sustained the objection. According to Jones, these failures to object were deficient and prejudicial because harmful evidence that should not have been admitted was in fact admitted. The occupants’ denial of ownership of the money made it more likely that the money belonged to Jones, who was the third person in the vehicle. Had the jury not heard that the other two occupants denied ownership of the money, it would have likely not linked the buy money to Jones, and would not have found him guilty.
¶23 We disagree. The record
conclusively demonstrates that the admission of this testimony was not
prejudicial. By the time this testimony
occurred, the jury had already heard that Officer Bryda ultimately released the
two occupants of the green
D. The trial court did
not err by not addressing the cumulative effect of trial
counsel’s deficient conduct.
¶24 Jones claims that the cumulative effect of all of the foregoing
instances of trial counsel’s alleged ineffectiveness sufficiently warrants a Machner
hearing. We disagree. Lumping together failed ineffectiveness
claims does not create a successful claim.
As our supreme court has often repeated, “adding them together adds
nothing. Zero plus zero equals
zero.” See, e.g., Mentek v. State, 71
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
 The Honorable Timothy M. Witkowiak initially presided over Jones’s case and issued the judgment of conviction. Following judicial rotation, the case was transferred in October 2009 to the Honorable Jean W. DiMotto, who denied Jones’s motion for postconviction relief.
 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
 Jones does not refer us to the actual property inventory in this instance. He refers only to the Crime Lab report discussing this particular property inventory.