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COURT OF APPEALS DECISION DATED AND RELEASED JUNE 27, 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. 95-0104-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DARNELL STEVENS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER CURIAM. A jury found Darnell
Stevens guilty of first-degree sexual assault and kidnapping. The court sentenced Stevens to twenty years
in prison on each count, to run consecutive to each other and concurrent to an
unrelated sentence.
Stevens's appellate
counsel, Attorney Michael J. Edmonds, has filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738
(1967). Stevens has filed a
response. As required by Anders,
this court has independently reviewed the record. Because there are no arguable issues for appeal, we affirm the
judgment of conviction.
In the no merit report,
counsel first discusses whether the trial court erred when it refused to allow
Stevens to fire his appointed attorney on the morning of trial. In his response, Stevens asserts that the
trial court was obligated to permit counsel's withdrawal after counsel informed
the court that he had "a certain fear of my own personal safety, based
upon [Stevens's] actions in the bullpen and here in court." In denying counsel's request to withdraw,
the court noted that Stevens's conduct could be "view[ed] ... as obstructing
the process." After defense
counsel reassured the court that he was prepared for trial, the court denied
the motion to withdraw. In his no merit
report, appellate counsel concludes that a challenge to that ruling would lack
arguable merit. We agree.
A defendant's request
for substitute appointed counsel is directed to the discretion of the trial
court. See State v. Stinson, 134 Wis.2d 224, 244, 397
N.W.2d 136, 144 (Ct. App. 1986). A
defendant must show good cause, and last-minute requests are frowned upon. State v. Haynes, 118 Wis.2d
21, 27-28, 345 N.W.2d 892, 896 (Ct. App. 1984). When deciding whether to permit substitution that would delay a
trial, the court must weigh the impact of the delay on witnesses and the
parties. See Stinson,
134 Wis.2d at 244, 397 N.W.2d at 144.
The record shows that
the court properly exercised its discretion.
Attorney Matthew Huppertz was the fourth lawyer appointed to represent
Stevens.[1] The case was over two years old.[2] The case had been adjourned previously to
allow Attorney Huppertz additional time to prepare. The State was prepared for trial, as was Attorney Huppertz. Despite Stevens's alleged threats, Attorney
Huppertz advised the court that he was "ready to go forward." The court properly exercised its discretion
when it refused Stevens's request for new counsel.
In his response, Stevens
argues that the court should have considered Wis.
Adm. Code § SPD 2.04. That rule
guides the state public defender's appointment of successor counsel upon a
defendant's request for a new attorney.
The rule has no bearing, however, on a court's decision whether to
permit the withdrawal of counsel. The
court did not err when it did not consider Wis.
Adm. Code § SPD 2.04.
Appellate counsel next
addresses whether the court erroneously exercised its discretion when it denied
Stevens's request for an adjournment of trial so that he could locate alibi
witnesses. In denying the request, the
court noted that the case had been pending for over two years, yet Stevens did
not file a notice of alibi until shortly before trial.[3] Attorney Huppertz advised the court that he
could not locate one of the alibi witnesses, and the assistant district
attorney stated that police had looked for, but could not find, that witness.[4] The other alibi witness was available to
testify. The court concluded that
"diligent efforts" had been made to locate the missing witness, and
the court declined to order a further adjournment. The court considered the proper factors, and it did not
erroneously exercise its discretion. See
State v. Berg, 116 Wis.2d 360, 369-70, 342 N.W.2d 258, 263 (Ct.
App. 1983).
Appellate counsel next
discusses whether Stevens's trial counsel was ineffective because he did not
move to suppress the identification of Stevens. Stevens was apprehended by officers investigating a report of a
sexual assault "in progress."
Officers testified that Stevens was sweating heavily and his penis was
visible through a large hole in his pants.
His stature and clothes matched the general description of the
assailant. In an on-the-scene show-up,
officers presented Stevens to the victim and to a friend who had seen the
assailant prior to the assault. Both
identified Stevens. The circumstances
surrounding the show-up do not reflect any improper police procedure or
suggestiveness. An on-the-scene show-up
is an acceptable identification method.
State v. Isham, 70 Wis.2d 718, 723-25, 235 N.W.2d 506,
509-10 (1975). Because a motion to
suppress the identification would have been denied, trial counsel was not
ineffective. See State v.
Simpson, 185 Wis.2d 772, 784, 519 N.W.2d 662, 666 (Ct. App. 1994).
The next potential
appellate issue is whether sufficient evidence supports the conviction. This court may not substitute its judgment
for that of the jury unless the evidence, viewed most favorably to the State
and the conviction, is so lacking in probative value and force that no
reasonable jury could have found guilt beyond a reasonable doubt. State v. Poellinger, 153
Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). This court will uphold the verdict if any possibility exists that
the jury could have drawn the inference of guilt from the evidence. See id. at 507, 451 N.W.2d at
758. The jury is the sole arbiter of
witness credibility. State v.
Serebin, 119 Wis.2d 837, 842, 350 N.W.2d 65, 68 (1984). The jury, and not this court, resolves
conflicts in the testimony, weighs the evidence and draws reasonable inferences
from basic facts to ultimate facts. Poellinger,
153 Wis.2d at 506-07, 451 N.W.2d at 757.
The sole disputed issue
at trial was whether Stevens was the assailant. While Stevens denied his guilt, both the victim and her friend
identified him. Other circumstantial evidence
linked Stevens to the crime. A
challenge to the sufficiency of the evidence would be frivolous.
The final question is
whether the court properly exercised its sentencing discretion. Sentencing lies within the sound discretion
of the trial court, and a strong policy exists against appellate interference
with that discretion. See State
v. Haskins, 139 Wis.2d 257, 268, 407 N.W.2d 309, 314 (Ct. App.
1987). The trial court is presumed to
have acted reasonably and the defendant has the burden to show unreasonableness
from the record. Id.
A review of the court's
comments at sentencing reflects a proper exercise of sentencing
discretion. The court considered the
aggravated nature of the offenses, Stevens's prior criminal record, his failure
to acknowledge responsibility for his actions, and the public's need for
protection from further criminal conduct.
The court considered the appropriate sentencing factors. See State v. Harris,
119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984). A challenge to the sentence would lack arguable merit.
Based on an independent
review of the record, we find no basis for reversing the judgment of
conviction. Any further appellate
proceedings would be without arguable merit within the meaning of Anders
and Rule 809.32, Stats.
Accordingly, the judgment of conviction is affirmed, and Attorney
Michael J. Edmonds is relieved of any further representation of
Stevens in this matter.
By the Court.—Judgment
affirmed.