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COURT OF APPEALS DECISION DATED AND RELEASED November 14, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0039-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM JAMES, JR.,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County: VICTOR MANIAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. William James, Jr., appeals from an order denying his motion
for a new trial based on an ineffective-assistance-of-trial-counsel
challenge. He was convicted, after a
jury trial, of first-degree intentional homicide, while armed; attempted
first-degree intentional homicide, while armed; and first-degree recklessly
endangering safety, while armed—all as a party to a crime. We previously remanded the case to the trial
court for a Machner hearing.[1] See State v. James, No.
93‑2485‑CR (Wis. Ct. App. July 26, 1994) (unpublished per curiam). The trial court held evidentiary hearings
and then denied James's motion for a new trial.
James advances one
argument for our review—he contends his trial counsel was ineffective for
allowing him to testify on his own behalf because counsel possessed no
reasonable trial strategy for doing so.
We reject his argument and affirm the order.
On July 14, 1991, James
and three companions were patronizing a gas station adjacent to Tony Watson's
home. They engaged in a verbal dispute
with Watson, and then James and the others left to retrieve firearms. Upon their return to Watson's home, the
foursome fired a myriad of shots through the residence's front door and
windows. As a result, a two-year-old
child was fatally wounded, while another child sustained injuries to her
head. Four days after the shooting,
James gave detailed and self-incriminating accounts of the incident to
Milwaukee police detectives. He was
charged and received a jury trial.
At trial, James
testified on his own behalf. He made several
admissions on the stand that he now asserts were prejudicial. He admitted: (1) giving gang signs to one of
the other individuals involved in the shooting; (2) getting firearms for the
shoot-out, including the sawed-off shotgun he used; (3) pointing and firing his
gun at the Watson house; (4) knowing that the shooting was going to take place;
and (5) lying to police.
In his motion for a new
trial he argued that he received ineffective assistance of trial counsel
because his counsel had no reasonable trial strategy to have him testify on his
own behalf. At the Machner
hearing, the following testimony was solicited. Bernard Goldstein,
James's counsel, justified the defense strategy in that he was
“concerned with the matter of intent and ... believe[d] that [James] could have
been found guilty of reckless conduct as opposed to intentional conduct.” Goldstein testified that he and James agreed
that James's testimony was the only evidence which might convince a jury to
convict on the lesser-included offense of reckless homicide. James testified that Goldstein told him that
if he (James) did not testify, the State could call him to the stand. James asserted that this was the only reason
he testified and that he told Goldstein he did not want to testify. The trial court subsequently ruled that
Goldstein's strategic decision was reasonable and, as such, his performance was
not deficient. James now appeals from
the order denying his motion for a new trial.
Strickland v. Washington, 466
U.S. 668, 687 (1984), the seminal case by which ineffective assistance of
counsel claims are adjudicated, articulates a two‑pronged test in
reviewing the reasonableness of an attorney's performance at trial. The first prong requires that the defendant
show that counsel's performance was deficient.
State v. Johnson, 126 Wis.2d 8, 10, 374 N.W.2d 637, 638
(Ct. App. 1985), rev'd on other grounds, 133 Wis.2d 207, 395 N.W.2d 176
(1986). That is, the defendant must
show that counsel's conduct was “`unreasonable and contrary to the actions of
an ordinarily prudent lawyer.'” Id.
at 11, 374 N.W.2d at 638 (citation omitted).
Judicial scrutiny of counsel's
performance must be highly deferential.
It is all too tempting for a defendant to secondguess counsel's
assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsel's defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was unreasonable.
Strickland, 466
U.S. at 689. Thus, because of the
difficulties in making such a post hoc evaluation, “the court should
recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgement.” Id. at 690.
The second prong
requires that the defendant show that the deficient performance was
prejudicial. Johnson, 126
Wis.2d at 10, 374 N.W.2d at 638. To be
considered prejudicial, 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”—i.e., “a probability sufficient to
undermine confidence in the outcome.” Strickland,
466 U.S. at 694. In reviewing the trial
court's decision, we accept its findings of fact, its “‘underlying findings of
what happened,’” unless they are clearly erroneous, while reviewing “the
ultimate determination of whether counsel's performance was deficient and
prejudicial” de novo. State
v. Johnson, 153 Wis.2d 121, 127‑28, 449 N.W.2d 845, 848
(1990). Further, if the defendant fails
to adequately show one prong, we need not address the second. Strickland, 466 U.S. at 697.
James contends that
because Goldstein advised him to testify at trial with allegedly no apparent
strategy for doing so, James was unfairly prejudiced and his sentence was
greater than it otherwise might have been.
We disagree. Strategic choices
made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable, while those made after less than
complete investigation are deemed reasonable.
Strickland, 466 U.S. at 690‑91. At a minimum, Goldstein's tactic falls
within that second category.
Goldstein's testimony at
the Machner hearing revealed that he believed the sole vehicle by
which to mitigate James's potential exposure was via a lesser-included-offense
defense; that is, to show that James did not intend to cause a death. Indeed, the self-incriminating statements
James made to detectives only days following the crime had already been
submitted into evidence; thus, James's possible defense options were severely
limited. Moreover, one of James's
co-defendants had successfully pursued an identical defense strategy. In Goldstein's professional opinion, no
other source existed outside of James's testimony to lessen his client's
culpability; that is, from intentional to reckless conduct. The trial court apparently accepted the
validity of Goldstein's strategy, for it delivered a lesser-included-offense
instruction on recklessly endangering safety and first-degree reckless
homicide. Further, the trial court
found that Goldstein did not advise James that he had to testify at trial; that
the state could compel his testimony; and that James's decision to take the
stand was his alone. These factual
findings are based on credibility assessments left to the trial court, State
v. Wyss, 124 Wis.2d 681, 694, 370 N.W.2d 745, 751 (1985); they are not
clearly erroneous. Johnson,
153 Wis.2d at 127‑28, 449 N.W.2d at 848.
Thus, upon “reconstruct[ing] the circumstances of counsel's challenged
conduct, and ... evaluat[ing] the conduct from counsel's perspective at the
time,” Strickland, 466 U.S. at 689, it is clear that Goldstein's
performance was not constitutionally deficient. Additionally, when a defendant, like James, fails to prove that
counsel's performance was deficient, we need not address the prejudice prong of
the Strickland test. Id.
at 697.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.