State Of Wis. v. Banks

• Decision Date: 21 July 2010
• Docket Number: No. 2009AP1436-CR.,2009AP1436-CR.
• Citation: 328 Wis.2d 766,790 N.W.2d 526,2010 WI App 107
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Tarence A. BANKS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

328 Wis.2d 766

790 N.W.2d 526

2010 WI App 107

STATE of Wisconsin, Plaintiff-Respondent,

v.Tarence A. BANKS, Defendant-Appellant.

No. 2009AP1436-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 8, 2010.

Opinion Filed July 21, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott D. Obernberger of Law Office of Scott D. Obernberger, LLC, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BROWN, C.J., ANDERSON and SNYDER, JJ.

SNYDER, J.

¶ 1 Tarence A. Banks appeals from a judgment of conviction that followed a jury verdict of guilty on two charges: possession of a firearm by a felon and resisting or obstructing an officer. He further appeals from an order denying his motion for postconviction relief. Banks contends that he received ineffective assistance of counsel, that the circuit court failed to properly count prior convictions of a witness for the State, and that the testimony against Banks at trial was insufficient to support the conviction. We agree that Banks received ineffective assistance of counsel and reverse. We hold that Banks is entitled to a new trial and remand for further proceedings.

BACKGROUND

¶ 2 On April 25, 2007, Racine police officers Michael Ditscheit and Christopher Blackmore were on patrol and noticed a green van with expired license plates. The officers noted three black males wearing black hooded sweatshirts in the van. The officers activated their emergency lights and “blipped the siren a couple times.” The van initially pulled over, but then pulled away and continued moving forward. It did the same maneuver again and the officers then advised dispatch that they were in pursuit. Ditscheit recalled the van failing to obey two stop signs and reaching speeds of up to forty miles per hour in a residential area with a twenty-five mile per hour speed limit.

¶ 3 Ditscheit then observed a person jump out of the van through the passenger side sliding door. Blackmore took up the chase on foot. With the assistance of other officers in the area, Blackmore tracked the fleeing person to a house. When he approached the house, the resident was pointing at a person on his porch and yelling, “[G]et this guy off my porch; I don't know who this man is.” There was a black hooded sweatshirt on the ground near the porch and the man was sweaty and breathing heavily. Blackmore recognized the man on the porch as Jimmie Green and placed him under arrest.

¶ 4 Meanwhile, a citizen informed Ditscheit that a man walking down another street had come out of the van. Ditscheit was able to stop the man and identify him as Michael Ozier.

¶ 5 Ditscheit then learned from another officer that a gun had been found nearby. The gun was in a residential backyard near a fence, and was placed under some bricks with the handle visible. Another officer, Jessie Nethery, testified that she found the gun, that it appeared the bricks were used to try to hide the weapon, and that the only footprints near the gun appeared to be Jimmie Green's.

¶ 6 Officer Joseph Bialkowski testified that he was assisting in the search for occupants of the van when he came upon a man wearing black clothing, perspiring, and breathing heavily. He identified the man as Banks and took him into custody.

¶ 7 During the ensuing investigation, police officers interviewed Banks, Green, and Ozier. At a pretrial suppression hearing, the officers described the interviews as follows. Robin Jacobsen, a retired Racine police officer, testified that he had met Banks in the police department interview room, where he informed Banks of the reason for his detention and the allegations that had been made by the officers at the scene. He then began reading the police department form advising Banks of his Miranda ¹ rights. Banks told Jacobsen that he would not sign the form and would not talk without an attorney present. As Jacobsen prepared to leave the interview room, Banks asked a question about the allegations. Jacobsen explained that the situation had to do with a green van that had fled from police and also a gun that had been found. Banks then, on his own, made a statement to Jacobsen regarding his reason for being in the area that night. After Banks made the statement, he then told Jacobsen he did not want to say anything else without an attorney. Jacobsen left the room.

¶ 8 Banks also testified at the suppression hearing, acknowledging that he knew his constitutional rights. He stated that Jacobsen did not end the interview when Banks requested an attorney; rather, Jacobsen tried to reread the form to him and then asked “two times” more whether Banks wanted to talk. Banks testified that he had told Jacobsen during the interview that he had been coming from his cousin Sarah's house when he was approached and detained by police.

¶ 9 The circuit court found that Jacobsen read Banks his constitutional rights and that the statement made by Banks was not prompted by interrogation. The court found that when Banks indicated he would not sign the waiver form, Jacobsen was going to leave but was drawn back by a question from Banks. Consequently, the court held that Banks' statement was voluntary and spontaneous and therefore would not be suppressed.

¶ 10 Ozier testified at trial and relayed the following version of events. He stated that he was driving the van and had picked up Green, who sat up front, and Banks, who sat in the back. When police initiated the traffic stop, Ozier began to pull over but Green told him to “go, go, go,” and he pulled away. Green jumped out of the van while Ozier and Banks stayed inside until Ozier parked in an alley. Ozier asserted that he did not know about a gun and did know whether Green or Banks had one while in the van. On the stand, Ozier confirmed that he had five prior criminal convictions.

¶ 11 Green also testified. His version of events differed somewhat from Ozier's; most importantly, he provided additional information about the gun. Green stated that Banks had a gun in the van and when the police attempted the traffic stop, Banks threw the gun into Green's lap. When he ran away from the van, Green dropped the gun as he tried to jump a fence.

¶ 12 Green also testified that while he was in jail, Banks sent him a letter. Green construed the letter as a request not to testify against Banks. He explained that, in the letter, Banks called him a “cut throat” and cast other aspersions, and stated “what's understood need not be talked about.” Green wrote a letter back to Banks, but did not state he would refuse to testify. While on the stand, Green acknowledged that he had five prior criminal convictions. Prior to Green's testimony, the circuit court had determined that two additional criminal convictions would not be counted for impeachment purposes because sentencing in those matters was still pending.

¶ 13 During its case-in-chief, the State asked two officers about the collection of DNA evidence from Banks during the investigation. Blackmore testified that he was able to obtain DNA samples from Ozier and Green without incident, but that Banks would not voluntarily submit a sample. Officer Todd Morschhauser also testified that Ozier and Green were cooperative during his investigation. Morschhauser indicated, however, that he had to “enlist [ ] assistance” from another police officer and “several sheriff's deputies” to try to obtain a DNA sample from Banks. Morschhauser testified that he prepared a search warrant which allowed him to “eventually” obtain the sample; he explained, “After I read the search warrant to [Banks] he voluntarily gave me a DNA swab.”

¶ 14 After a two-day trial, the jury returned verdicts of guilty on both charges. Banks filed a motion for postconviction relief, asserting that he had received ineffective assistance of counsel, that the court made erroneous rulings on the admission or suppression of evidence, and that there was insufficient evidence to support the verdicts. After several hearings on the motion, the court denied it in its entirety. Banks appeals.

DISCUSSION

¶ 15 Banks renews all three of his postconviction arguments and offers four reasons for his claim of ineffective assistance of counsel. He asserts that (1) his attorney failed to sufficiently voir dire the jury after learning that the potential jurors were making racial comments, (2) his attorney failed to seek a jury instruction advising the panel that all interrogations of felony suspects must be recorded, (3) his attorney failed to object to testimony indicating that Banks did not cooperate in providing a DNA sample, and (4) his attorney improperly disclosed the letter that Green sent to Banks from jail. Banks further argues that the circuit court erred when it failed to count all seven of Green's prior convictions for impeachment purposes. Finally, he argues that Green's testimony, which the State relied on to obtain a conviction, was insufficient to support the verdict.

Ineffective Assistance of Counsel

¶ 16 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. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court may dispose of a claim of ineffective assistance of counsel on either ground. Id. at 697, 104 S.Ct. 2052. We review the denial of an ineffective assistance claim as a mixed question of fact and law. State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845 (1990). We will not reverse the circuit court's factual findings unless they are clearly erroneous. Id. However, we review the two-pronged determination of trial counsel's performance independently as a question of law. Id. at 128, 449 N.W.2d 845.

¶ 17 We...