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COURT OF
APPEALS DECISION DATED AND
RELEASED July
2, 1996 |
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-2206-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ANDRE
M. PIRTLE,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before
Wedemeyer, P.J., Sullivan and Fine, JJ.
PER
CURIAM. Andre M. Pirtle appeals from a judgment of conviction, after
a bench trial, for first-degree reckless homicide while armed with a dangerous
weapon, contrary to §§ 940.02(1) and 939.63(1)(a)(2), Stats.
Pirtle also appeals from an order denying his postconviction motion for
a new trial. Pirtle raises two main
issues on appeal. First, that he
received ineffective assistance of counsel.
He claims that his counsel's failure to inform him of the possibility of
an Alford plea deprived him of his right to make a reasonably
informed decision regarding a mid-trial plea offer made by the prosecutor. Second, that there was insufficient evidence
to convict because most of the evidence was inherently incredible. We affirm.
I. Background.
The
following facts were presented at trial.
On the evening of November 5, 1993, Walter Lee Hawkins, also known as
“June” or “Junior,” was murdered during an altercation. Hawkins was shot at 10:40 p.m. No bullet was ever recovered from his body
or from the crime scene. The
altercation occurred in the street in front of a home where a party was taking
place. It first involved females fighting
in the street, but soon broadened to include males. Pirtle went into the street and apparently tried to stop the
dispute. Pirtle then fired some shots
from his .25‑caliber handgun in the direction of the victim in what he
claimed was an attempt to end the altercation.
Pirtle told police that he observed Walter Hawkins continue to argue
after he fired his gun. Pirtle then
left the area of the shooting.
Other
witnesses provided testimony relevant to this appeal. Kevin McCraney testified that he saw Pirtle shoot the victim with
a small black gun, from about a foot away.
Evelyn Hawkins, the victim's sister, testified that Pirtle was the
person who did the shooting. She also
testified that after the shooting, the victim walked down the street saying,
“I've been shot.”
Dr.
Jeffrey M. Jentzen performed the autopsy on the victim, and testified about the
wounds. He testified that the wound on
the victim was more likely to be caused by a .38-caliber bullet than by a
.25-caliber bullet. He did testify,
however, that a .25-caliber weapon could also have caused the wound, depending
upon the ammunition used.
II. Analysis.
A. Ineffective
assistance of counsel claim.
Pirtle
bases his claim of ineffective assistance of counsel on the failure of his
trial counsel to inform him of the option of an Alford plea. See North Carolina v. Alford,
400 U.S. 25 (1970). Pirtle contends
that had he known of this option, he would not have proceeded to trial. Pirtle asserts that the failure of his
counsel to discuss an Alford plea with him constituted deficient
performance. He also claims that the
trial court found that his counsel's failure to discuss the Alford
plea with him to be deficient performance.
Pirtle further argues that his counsel's failure to discuss the Alford
plea has caused him prejudice. Pirtle
claims that he would have accepted the plea because it would have allowed him
to avoid a trial without admitting that he was the one who killed his
friend. Pirtle also points out that the
state has presented no evidence that it would not have accepted the Alford
plea if his counsel had suggested it.
A
defendant's right to counsel includes the effective assistance of counsel in
choosing whether to accept a plea agreement.
Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.), cert.
denied, 479 U.S. 937 (1986). There
are two necessary elements for an ineffective assistance of counsel claim,
“deficient performance by counsel and prejudice to the defendant.” State v. Hubert, 181 Wis.2d
333, 339, 510 N.W.2d 799, 801 (Ct. App. 1993).
The burden of establishing these two elements is on the defendant. State v. Sanchez, No. 94‑0208,
slip op. at 12 (Wis. May 22, 1996).
When reviewing an ineffective assistance of counsel claim, this court
pays deference to the trial court's findings of fact. State v. Schambow, 176 Wis.2d 286, 301, 500 N.W.2d
362, 368 (Ct. App. 1993). With respect
to the performance elements, we operate with a “strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance.” Strickland v.
Washington, 466 U.S. 668, 689.
The final determination of whether counsel's performance was deficient
and whether there was prejudice are questions of law that we will review
independently. Schambow,
176 Wis.2d at 301, 500 N.W.2d at 368.
If we conclude that the defendant was not prejudiced, we need not
address whether the performance of trial counsel was deficient. State v. Kuhn, 178 Wis.2d 428,
438, 504 N.W.2d 405, 410 (Ct. App. 1993).
Prior
to Pirtle's trial, the prosecutor offered a recommendation of a fifteen-year
sentence in return for a guilty plea by Pirtle to a homicide charge. Pirtle claims that he did not accept this
deal because he did not want to admit to a homicide charge. Pirtle insisted that he did not fire the
fatal shot, but stated he would plead to a non-homicide charge and did not want
a sentence over ten years. A mid-trial
plea discussion involved an offer by the prosecutor to amend the first-degree
reckless homicide charge to a homicide charge which carried a maximum penalty
of ten years. After consulting with his
trial counsel, Pirtle declined the offer.
The parties have established that the court would have accepted the
agreement.
At
Pirtle's postconviction hearing on the ineffective assistance of counsel claim,
the trial court found that Pirtle was unable to establish any prejudice. Pirtle claims that the trial court did find
deficient performance, however. After
reviewing the trial court's ruling, we do not agree that a finding of deficient
performance was made. The trial court
found no evidence that the State ever offered to reduce or amend the charge in
exchange for an Alford plea.
Rather, the prosecutor insisted that Pirtle plead guilty to
homicide. The trial court found that it
was wholly speculative whether the State would have agreed to an Alford
plea to a reduced charge. The trial
court also determined that had the issue of an Alford plea been
raised during plea negotiations, trial counsel would have been remiss in not
discussing it with Pirtle. Therefore,
we do not agree that the trial court found deficient performance.
Additionally,
Pirtle has not met his burden on the prejudice element of his ineffective
assistance of counsel claim. “In order
to show prejudice, `[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional error, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.'” Sanchez,
No. 94‑0208, slip op. at 16 (quoting Strickland, 466
U.S. at 694). He has stated that he
believes he would have accepted a plea where he could have maintained his
innocence. Yet such an offer was never
made by the prosecutor. Even if trial
counsel had suggested the option of an Alford plea, it is
entirely speculative whether the prosecutor would have agreed to such a
plea. We agree with the trial court
that Pirtle's prejudice claim lacks merit because there is no evidence that the
defendant would have received a lesser sentence if his trial counsel had raised
the possibility of an Alford plea.
B. Sufficiency
of the evidence.
Pirtle
also argues that the evidence was insufficient to convict him of first-degree
reckless homicide. Pirtle claims that
most of the evidence was inherently incredible or contrary to accepted forensic
testimony. To substantiate his claim,
Pirtle offers examples of testimony which he argues renders the evidence used
to convict him inherently incredible.
Upon
a challenge of a conviction based on a claim of insufficient evidence to
convict, we will affirm if the trier of fact could be “convinced to the
required degree of certitude by the evidence which it has a right to believe
and accept as true.” State v.
Daniels, 117 Wis.2d 9, 17, 343 N.W.2d 411, 415 (Ct. App. 1983). The trier of fact has the duty to determine
the weight and credibility of inconsistent or conflicting testimony. We will only substitute our judgment for
that of the trier of fact when inherently incredible evidence, such as evidence
which conflicts with nature or fully established facts, was relied upon by the
fact finder. Id. at 17,
343 N.W.2d at 415‑16.
Pirtle
was convicted of first-degree reckless homicide.[1] The elements of first-degree reckless
homicide are: (1) that the
defendant caused the death of the victim; (2) that the defendant caused
the death by criminally reckless conduct; and (3) that the circumstances
of the defendant's conduct show an utter disregard for life. See § 940.02(1), Stats.
Among
the alleged inconsistencies raised by Pirtle are the following. Pirtle points out that his statement to
police that he admitted firing a .25-caliber handgun from five or six feet away
from the victim was relied upon by the trial court in reaching a guilty
verdict. Forensic expert
Dr. Jeffrey Jentzen testified that the wound on the victim was more likely
to have been caused by a .38-caliber rather than a .25-caliber gun. Both Pirtle and Evelyn Hawkins claimed that
the victim walked away after Pirtle fired his gun in the victim's
direction. Pirtle claims that this is
inconsistent with the victim having been shot.
Pirtle also alleges that Kevin McCraney's testimony that he witnessed
Pirtle shoot the victim is inconsistent with Dr. Jentzen's testimony that
there were no powder burns on the victim.
We
reject Pirtle's argument that the trier of fact relied upon inherently
inconsistent evidence, and agree with the trial court that all three elements
of the offense have been established.
Dr. Jentzen specifically testified that the wound on the victim
could have been caused by a .25-caliber handgun, depending on the type of
ammunition used. Pirtle told police he
fired a .25-caliber handgun in the direction of the victim. There is also no evidence in the record that
the testimony regarding the victim's ability to walk after being shot is
inherently incredible. The fact that a
witness's testimony may contradict the testimony of Dr. Jentzen does not
render it inherently incredible, but rather, places the inconsistent statements
before the trier of fact to determine their weight. We conclude that the testimony presented at trial was sufficient
for the court to find that Pirtle, by recklessly firing a gun, caused the death
of Walter Hawkins under circumstances that showed an utter disregard for
life. Accordingly, we affirm.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.