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COURT OF APPEALS DECISION DATED AND RELEASED November 5, 1996 |
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. 95-2895-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ALFREDO VEGA,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Fine, Schudson
and Curley, JJ.
PER
CURIAM. Alfredo Vega appeals from a judgment of conviction, after a
bench trial, for first-degree intentional homicide and robbery—use of
force. He also appeals from an order
denying his motions for postconviction relief.
He raises several issues for review: (1) whether the trial court erred
when it denied his motion for a new trial based on ineffective assistance of
trial counsel; (2) whether the evidence was sufficient to support his
conviction; and (3) whether the trial court failed to consider evidence “which
negated intent and erroneously considered evidence of a withdrawn special
plea.” We reject his arguments on these
issues and affirm both the judgment and the order.
I.
Background.
On November 24, 1993,
police found the body of a woman in a home on the north side of Milwaukee. The medical examiner determined the cause of
death to be severe head injuries due to blunt force trauma. Police arrested Vega on November 24, and he
gave a custodial statement providing the following version of the events
leading to the victim's death. Vega met
the victim at a tavern the evening before her death. He and the victim returned to her apartment and had sexual
intercourse. At some time in the early
morning hours, Vega awoke and heard a “voice” tell him the victim had money
that he could use to buy his children presents. He searched for the money but was unable to find any. The voice told him to “knock her out so that
she wouldn't wake up and remember who [he] was.” He found a hammer and the voice told him to hit her in the head
with it. He hit her once with the
hammer; the voice told him that she wasn't knocked out yet, and that he should
hit her again. Vega hit her again in
the head. He then stole some of the
victim's personal property and then checked on the victim—she was
breathing. The voice told him that she
would be okay, so he left.
Vega entered pleas of
not guilty and not guilty by reason of mental disease or defect. Doctors George Palermo and Frederick Fosdal
were appointed to examine Vega with respect to his special plea. Both doctors filed reports indicating that
Vega was responsible for the crimes, and that there was no support for the
special plea. Vega later withdrew his
special plea of not guilty by reason of mental disease or defect. He then waived his right to a jury trial and
he received a bench trial.
The evidence presented
at Vega's trial included, among other things:
his custodial statement; the opinion of the medical examiner on the
victim's cause of death; the testimony of the victim's brother who verified the
stolen property found at Vega's mother's house; and the testimony of a tavern
owner who acknowledged that Vega and the victim had been in his tavern and that
neither was intoxicated.
Vega's counsel also
moved the court to consider certain of Vega's mental health records, including
hospital records of Vega's treatment the day before the homicide. Counsel also requested a lesser-included
offense instruction for first‑degree reckless homicide. The trial court found Vega guilty of both
first-degree intentional homicide and robbery use of force.
Vega then filed postconviction
motions alleging that he received ineffective assistance of counsel because his
trial counsel: did not present
testimony from Vega's family members dealing with his behavior around the time
of the homicide; urged the admission of Doctors Palermo and Fosdal's reports,
which Vega alleged were detrimental to his defense that he did not act
intentionally; and did not urge for the admission of Vega's mental health
records showing a history of command voices.
The trial court held a Machner[1]
hearing, after which it concluded counsel's performance was not deficient, and
that Vega received effective assistance of counsel. The trial court then denied Vega's postconviction motions. This appeal follows.
II.
Analysis.
Vega first argues that
he received ineffective assistance of trial counsel. His argument focuses on the actions of his counsel with respect
to a failure to present mental health evidence that he argues would have shown
that his psychiatric condition prevented him from intentionally committing the
crimes. The State counters, arguing
that the presentation of such evidence would have been nothing more than a
diminished capacity defense, a defense to criminal charges not recognized in
Wisconsin. We agree with the State on
this point. Further, we agree with the
trial court that Vega has not met his burden of showing that his counsel's
representation was ineffective.
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.
The trial court
concluded that counsel had “reasonable, logical strategical reasons” for the
contested actions. Thus, the court
concluded that counsel's performance was not deficient and, further, that there
was no prejudice because there was “no reasonable probability that there would
have been a different outcome or result in the trial.”
We agree with the trial
court that Vega has not shown how any of his trial counsel's actions prejudiced
the outcome of the trial within the meaning of Strickland.
None of counsel's
contested actions regarding the admission of Vega's medical reports, Doctors
Palermo and Fosdal's reports, or failure to admit family lay testimony of
Vega's past instances of hearing command voices would have affected the outcome
of the trial. This is because, under
the circumstances of this case, Vega's acts were intentional, whether he heard
voices or not.
In State v. Morgan,
195 Wis.2d 388, 536 N.W.2d 425 (Ct. App. 1995), we presented the following rule
with respect to the effect of psychiatric evidence on the issue of specific
intent to commit a crime:
“Now suppose, instead, that [the
defendant], though realizing that [the victim] was a human being whom he was
not licensed to kill—knowing, in other words, that he was committing
murder—murdered [the victim] because he heard voices inside his head commanding
him to do so and could not resist their importunings ... or for any other
reason, rooted in insanity which overbore [the defendant's] will to resist
committing a criminal act. In all of
these cases [the defendant] would intend to do a killing he knew to be without
authorization in law, and thus would have the required intent for first-degree
murder, but he would have a plausible insanity defense.”
Id. at
521‑22, 536 N.W.2d at 437 (quoting Morgan v. Israel, 735
F.2d 1033, 1035‑36 (1984), cert. denied, 469 U.S. 1162 (1985))
(emphasis and bracketed material in original).
Given this analysis in Morgan,
even if counsel had presented the evidence in the way now argued by Vega, it
would not have had any impact on the outcome of his bench trial. Whether voices commanded him to hit the
victim, under Wisconsin law he had the necessary intent for first-degree
homicide. Accordingly, Vega has failed
to show that his counsel's actions caused him prejudice within the meaning of Strickland.[2]
Vega next argues that
there was insufficient evidence to support his conviction. He argues that, given the evidence of his
mental health problems as presented in the reports of Doctors Palermo and
Fosdal, plus other corroborating evidence, he could only be convicted of
first-degree reckless homicide, not first-degree intentional homicide or
robbery—use of force. We disagree.
The burden of proof in
a criminal case is on the State to prove every essential element of the crime
charged beyond a reasonable doubt. The
standard for reviewing the sufficiency of the evidence to support a conviction
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.
In order for the court to reverse, the evidence must be in conflict with
“fully established or conceded facts.”
State
v. Rushing, 197 Wis.2d 631, 641-42, 541 N.W.2d 155, 159 (Ct. App.
1995) (citations omitted).
Vega concedes the
evidence supports the actus reus elements of the charged crimes beyond a
reasonable doubt; he only challenges whether the evidence is sufficient to
support a finding of criminal intent.
The trial court noted that the evidence showed that Vega repeatedly hit
the victim in the head with a hammer and that this evinced the necessary intent
to commit first-degree homicide. We
agree. The autopsy evidence showed that
the victim had been struck at least seven times in the head, fracturing the
skull and causing the victim's death from severe brain injury. This is sufficient evidence from which a
trier of fact can infer intent to kill.
See, e.g., Boyer v. State, 91 Wis.2d 647, 672-73, 284
N.W.2d 30, 40-41 (1979).
Further, the evidence
clearly showed Vega's intent to steal.
He admitted searching the victim's house, looking for things to steal,
and then taking the victim's property.
Additionally, none of
the psychiatric evidence that Vega introduced, which chronicled his argument
that “he was driven by command, auditory hallucinations,” would effect his
intent under Wisconsin law. Wisconsin
does not recognize a diminished capacity defense. See, e.g., Steele v. State, 97 Wis.2d 72,
89-92, 294 N.W.2d 2, 9-11 (1980). In
short, the evidence presented at Vega's bench trial was sufficient to support
his conviction.
Finally, Vega argues
that the record does not sufficiently reflect whether the trial court
considered the mental health evidence in reaching its finding of guilt. As we stated above, however, none of the
mental health evidence that Vega presented could have affected the trial
court's findings on Vega's intent to kill.
See id. If
Vega had continued with his plea of not guilty by reason of mental disease or
defect, such evidence might have impacted a trier of fact's determination of
whether Vega was criminally responsible for his actions, see Morgan,
195 Wis.2d at 416, 536 N.W.2d at 435, but without a bifurcated trial none of
this evidence was relevant to the trial court's findings.
Accordingly, for the
above reasons, we reject all of Vega's arguments on appeal. The judgment of conviction and order denying
postconviction relief are affirmed.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] In his reply brief, Vega argues that if we conclude that his counsel was pursuing a diminished capacity defense, then that was ineffective assistance of counsel because he was pursuing a defense that was not recognized in Wisconsin. He does not show, however, how this prejudiced the outcome of his bench trial. Even if we were to conclude that this was deficient performance, Vega does not meet the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984). Hence, his ineffective assistance of counsel claim fails on this alternative argument as well.