COURT OF APPEALS
DATED AND FILED
April 14, 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
Adrian A. Starks,
from a judgment and an order of the circuit court for
¶1 PER CURIAM. Adrian Starks appeals a judgment of conviction for two counts of first-degree reckless homicide by delivery of drugs and one count of delivery of heroin. Wis. Stat. §§ 940.02(2)(a) and 961.41(1)(d)4. (2003-04). He also appeals the order denying his motion for postconviction relief. Starks argues that he received ineffective assistance of trial counsel for a variety of reasons, that the prosecutor engaged in prosecutorial misconduct by making certain statements during closing argument, and that the circuit court erred when it allowed Starks to stipulate that heroin was a substantial factor in the death of one of the two victims. We conclude that these arguments lack merit, and affirm the judgment and order of the circuit court.
¶2 The facts in this case are not complicated. Starks sold heroin to a woman named Lavinia
¶3 Starks was represented at trial by Attorney Randall Skiles. The jury found Starks guilty on all counts. Postconviction counsel was appointed to represent Starks, but Starks decided to represent himself. Starks brought a motion for postconviction relief, and the court held a hearing on the motion. Attorney Skiles, Starks, and others testified. The court denied the motion. Starks, again representing himself, appeals.
¶4 We first address Starks’ ineffective assistance argument concerning the stipulation that heroin was a substantial factor in Ace’s death. Starks’ first claim is that his trial counsel was ineffective by not informing Starks that Ace’s death had been ruled accidental by the coroner, and by allowing Starks to enter into the stipulation. Starks argues that the coroner’s report indicated that Ace’s death was accidental, and that, if he had known this, he would not have stipulated that heroin was a substantial factor in Ace’s death. Starks also argues that counsel should have presented this evidence to the jury.
¶5 To establish an ineffective assistance of counsel claim, a
defendant must show both that counsel’s performance was deficient and that he
was prejudiced by the deficient performance.
¶6 The record shows that the coroner’s report on Ace was
prepared by the deputy coroner, who was neither a medical doctor nor the
pathologist who performed the autopsy, Dr. Robert Huntington. At the postconviction motion hearing, one of
the detectives involved in the investigation testified that Dr. Huntington
said that heroin was a substantial contributor to Ace’s death and that
¶7 We agree with the circuit court that Attorney Skiles made a reasonable strategic decision to have Starks stipulate that heroin was a substantial factor in Ace’s death. The evidence that the deputy coroner’s report said the cause of death was accidental would have been overshadowed by the opinion of the pathologist, Dr. Huntington. Given counsel’s familiarity with Dr. Huntington as a witness, it was reasonable, and prudent, for counsel to pursue a stipulation. Starks did not receive ineffective assistance of trial counsel on this basis.
¶8 In a closely related argument, Starks contends that the circuit court erred by failing to adequately explain to him the ramifications of stipulating that heroin was a substantial factor in Ace’s death, and that the State was required to prove all of the elements of the offense even though he entered into a stipulation.
¶9 “When both the defendant and the district attorney agree that
a fact is proven, the parties can stipulate to the existence of that fact. The stipulation dispenses with the need for
further proof of the fact and is presented to the jury.” State v. Warbelton, 2009 WI 6, ¶49
¶10 Starks also argues that trial counsel was ineffective for
failing to investigate or introduce evidence that would have contradicted parts
¶11 Starks contends that the only fact connecting him to Stellner’s
death was Mull’s testimony that
¶12 Starks argues that counsel should have introduced Mull’s phone records
to show that Mull did not call Starks in the early morning of April 26, and
that this evidence could have been used to impeach Mull’s testimony that
¶13 At the postconviction hearing, Attorney Skiles testified that
he did not pursue this line of inquiry because, in his experience, an
inconsistency in a date is not an effective basis for impeachment. In effect, Attorney Skiles explained that
¶14 We conclude that counsel was not ineffective for failing to
pursue this line of inquiry. Starks
asserts that the phone records were exculpatory. The argument, as Starks frames it, assumes
that the date
¶15 Starks also argues that trial counsel was ineffective for
failing to call Starks’ mother as an alibi witness. Starks asserts that his mother would have
testified that Starks was home in bed in the early morning hours of April 26,
2005. Attorney Skiles testified that he
did not call Starks’ mother because close relatives are generally not good
alibi witnesses. Given
¶16 Starks makes two arguments based on his assertion that Mull had
other sources for heroin. Starks argues
that trial counsel was ineffective for failing to obtain phone records because
those records also would have shown that
¶17 Starks also asserts that there were witnesses who would have
¶18 Starks makes two arguments involving comments made by the
prosecutor. During closing argument, the
prosecutor said that Starks did not have a job, and let his girlfriends pay his
expenses. The prosecutor commented that Starks
was still able to pay his rent and move into a more expensive apartment. The prosecutor then said: “We know he’s got a residence according to
¶19 Starks is correct that there was nothing in the record to
support the prosecutor’s argument that drug dealers typically purchase houses
in other places and have those houses titled in someone else’s name. We will assume that the statements the
prosecutor made about the
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).
 Starks claims in his reply brief that he does not know the identity of these potential witnesses, and thus could not call them to testify at the postconviction hearing. This assertion only reinforces our conclusion that his argument on this basis is mere speculation.
 Attorney Skiles said:
The District Attorney gets up here and speculates
that [Starks is] this big heroin dealer making all this money, but where’s the
evidence of this? That allegedly he has
three or four cell phones, that you’ve heard of an old purple minivan and a
Buick in someone else’s name. That
there’s a house that someone else owns [in