State Of Wis. v. Williams, 2010AP1028

CourtCourt of Appeals of Wisconsin
Writing for the CourtBRENNAN, J
Docket NumberNo. 2010AP1028,No. 1995CF955598A,2010AP1028,1995CF955598A
PartiesState of Wisconsin,Plaintiff-Respondent, v. Lawrence Williams, d
Decision Date08 March 2011

State of Wisconsin, Plaintiff-Respondent,
Lawrence Williams, defendant-appellant.

No. 2010AP1028
No. 1995CF955598A


March 08, 2011

A. John Voelker
Acting Clerk of Court of Appeals

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

APPEAL from a judgment and orders of the circuit court for Milwaukee County: LEE E. WELLS and DENNIS R. CIMPL, Judges.1Affirmed.

Before Curley, P.J., Kessler and Brennan, JJ.

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¶1 BRENNAN, J. Lawrence Williams appeals pro se from an order denying his WIS. STAT. § 974.06 postconviction motion, from an order denying his motion for reconsideration, and from the underlying judgment of conviction. We conclude that Williams's postconviction motion is procedurally barred because Williams fails to allege a sufficient reason for not previously raising his claims as required by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994), andState v. Tillman, 2005 WI App 71, ¶¶25-27, 281 Wis. 2d 157, 696 N.W.2d 574. Therefore, we affirm.


¶2 In the month that elapsed between November 17 and December 16, 1995, Williams and three of his cohorts—including Shulbert Williams (Williams's brother), and Andre Mitchell and Jerry Curry (Williams's friends)—went on a crime spree, robbing various businesses in the City of Milwaukee. Their crime spree came to an end when they shot Milwaukee Police Officer Jeffrey Cole following a robbery at a Speedy Lube on December 16. During police interviews after his arrest, Williams admitted to participating in ten robberies during those final weeks of 1995, including the December 16 Speedy Lube robbery which ended in the shooting of Officer Cole.

¶3 Following Williams's admissions, the State filed a criminal complaint charging Williams with eleven felonies, all as a party to a crime, including: one count of attempted first-degree intentional homicide while armed with a dangerous weapon; seven counts of armed robbery, all while concealing identity; and three counts of attempted armed robbery, two while concealing identity.

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¶4 Williams filed a motion to suppress his admissions to the robberies, alleging that the police did not read him his Miranda rights and physically intimidated him into confessing to crimes he did not commit. A Miranda/Goodchild hearing2 was held, after which Williams's motion to suppress was denied. The trial court found Williams's testimony that he was not read his Miranda rights and that he was physically abused by the detectives who interrogated him to be "totally unbelievable." The trial court found the detectives' testimony to the contrary to be credible.3

¶5 At trial, Williams took the stand and recanted his admissions to all of the robberies except the final robbery at the Speedy Lube on December 16. He again testified that the police did not read him his Miranda rights before questioning him after his arrest and that he told the detectives that he participated in a number of robberies that he did not actually commit because the police physically harmed him. Williams admitted, however, to being involved in the armed robbery of the Speedy Lube on December 16 and that he was involved in a getaway following the robbery. Williams testified that he had a gun at the robbery, that he was the driver of the car that sped away from the scene, and that he noticed someone following them after they fled. Williams, Mitchell, and Curry were all in the car. Williams said he pulled the car into an alley to try to get away from the person following them. He then saw Curry step out of the car and begin

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shooting. It was later revealed that Curry had shot and hit Officer Cole who had followed the car from the robbery. Officer Cole survived and later identified Williams as the driver of the getaway car.

¶6 The jury found Williams guilty of all eleven counts, and the court entered judgment accordingly. Williams, represented by counsel, pursued a direct appeal, in which he claimed that his custodial statements were elicited by the police in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and that the trial court erred in dismissing an extra juror after the evidence in the case was closed but before the jury started its deliberations. We affirmed the trial court. State v. Williams, 220 Wis. 2d 458, 460, 583 N.W.2d 845 (Ct. App. 1998). The Wisconsin Supreme Court denied Williams's petition for review.

¶7 More than twelve years later, Williams filed the pro se WIS. STAT. § 974.06 postconviction motion that is at issue in this case. In it, he alleged that his postconviction counsel was ineffective for failing to challenge the ineffectiveness of his trial counsel on various grounds. The trial court denied the motion without a hearing, concluding that Williams's claims were barred by Escalona-Naranjo and State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996). Williams filed a motion for reconsideration, which the trial court also denied. This appeal follows.


¶8 Williams now argues that the trial court erred in denying his motions and that because his postconviction counsel was allegedly ineffective for failing to raise claims regarding the ineffectiveness of his trial counsel, a "sufficient reason" exists under Escalona-Naranjo and Rothering to permit his WIS. STAT. § 974.06 postconviction motion. More specifically, Williams argues that his postconviction

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counsel should have claimed that his trial counsel was ineffective for: (1) failing to investigate certain alibi witnesses; (2) failing to challenge the prosecutor's comments during voir dire; (3) failing to challenge the striking of a potential juror for cause; (4) failing to challenge the prosecutor's comments during closing argument; (5) failing to adequately challenge the admissibility of the statements Williams made to the police after his arrest; (6) failing to include Williams in sidebars; and (7) failing to challenge the jury instruction on party-to-a-crime culpability.4 We will address each of his arguments in turn.

A. Legal Standards

¶9 When a defendant files a WIS. STAT. § 974.06 postconviction motion after he has already filed a previous motion or direct appeal, a sufficient reason must be shown for failure to raise the new issue in the previous motion or appeal. Escalona-Naranjo, 185 Wis. 2d at 184-85. A possible justification for belatedly raising a new issue is ineffective assistance of the attorney who represented the defendant in the previous proceedings.5Rothering, 205 Wis. 2d at 681-82.

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¶10 When an ineffective assistance of postconviction counsel claim is premised on the failure to raise ineffective assistance of trial counsel, the defendant must first establish trial counsel was actually ineffective. State v. Ziebart, 2003 WI App 258, 115, 268 Wis. 2d 468, 673 N.W.2d 369. To prevail on a claim of ineffective assistance of trial counsel, Williams must show that counsel was deficient and that the deficiency prejudiced his defense. See State v. Mayo, 2007 WI 78, 133, 301 Wis. 2d 642, 734 N.W.2d 115. Because a defendant must show both deficient performance and prejudice, reviewing courts need not consider one prong if the defendant has failed to establish the other. Strickland v. Washington, 466 U.S. 668, 697 (1984).

¶11 To prove deficient performance, the defendant must point to specific acts or omissions of the lawyer that are "outside the wide range of professionally competent assistance." Id. at 690. There is a "strong presumption that counsel acted reasonably within professional norms." State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). "'Effective representation is not to be equated, as some accused believe, with a not-guilty verdict. But the representation must be equal to that which the ordinarily prudent lawyer, skilled and versed in criminal law, would give to clients who had privately retained his [or her] services.'" State v. Felton, 110 Wis. 2d 485, 500-01, 329 N.W.2d 161 (1983) (citation omitted).

¶12 To satisfy the prejudice prong, the defendant must demonstrate that the lawyer's errors were sufficiently serious so as to deprive him or her of a fair trial and a reliable outcome, Johnson, 153 Wis. 2d at 127, and "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

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¶13 We review the denial of an ineffective assistance claim as a mixed question of fact and law. Johnson, 153 Wis. 2d at 127-28. We will not reverse the trial 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.

¶14 Absent unusual circumstances, a postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). A defendant's claim that counsel provided ineffective assistance does not, however, automatically trigger a right to a hearing. State v. Curtis, 218 Wis....

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