State v. Adams

• Decision Date: 15 July 1998
• Docket Number: No. 97-1926-CR,97-1926-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ralph E. ADAMS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 695

584 N.W.2d 695

221 Wis.2d 1

STATE of Wisconsin, Plaintiff-Respondent, v. Ralph E. ADAMS, Defendant-Appellant.

No. 97-1926-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 4, 1998.

Opinion Released July 15, 1998.

Opinion Filed July 15, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott F. Anderson, Law Office of Scott F. Anderson of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General and James M. Freimuth, Assistant Attorney General.

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

ANDERSON, Judge.

Ralph E. Adams appeals from an amended judgment of conviction for one count of misconduct in public office in violation of § 946.12(2), STATS., and an order denying his postconviction motion. On appeal, Adams challenges his counsel's effectiveness relating to (1) his prearrest silence, (2) evidence relating to his job performance, (3) a witness' comment regarding the victim, and (4) evidence of threats to a witness, and he questions the propriety of the assistant district attorney's closing argument. We reject Adams' claims and affirm the judgment and the order.

FACTS AND PROCEDURAL BACKGROUND

Adams was originally charged in a six-count indictment for two alleged incidents involving two juvenile females who were temporarily detained at the Racine County Juvenile Detention Center (RJDC) where Adams was employed as a staff member. The information alleged in count one that as a supervisor at the RJDC, Adams called one of the juveniles, who was fifteen at the time, into his office and sought to engage in sexual activities with her. The misconduct charge, count two, was premised on allegations that Adams used his supervisory position to attempt to solicit sex from the juvenile, a detainee.

Adams pled not guilty and the matter proceeded to trial. ¹ The jury acquitted Adams of the child enticement charge, but found him guilty of misconduct by a public employee as charged in count two. Adams was sentenced to a two-year stayed prison term and the trial court placed him on probation for three years with the first twelve months to be served in jail. Subsequently, Adams filed a postconviction motion alleging ineffective assistance of counsel. The trial court denied the motion and Adams appeals. Additional facts will be included within the body of the decision as necessary.

INEFFECTIVE ASSISTANCE OF COUNSEL

Adams claims ineffective assistance of counsel. He argues that his trial counsel was ineffective for not objecting to evidence relating to Adams' prearrest silence, his job performance, a witness' comments regarding the victim and threats to a witness. We will address each argument separately.

In order to prevail on a claim of ineffective assistance of counsel, Adams must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Adams must show that his counsel's performance was deficient and that it resulted in prejudice to his defense. See id. In reviewing a trial court's decision on a claim of ineffective assistance of counsel, we accept its findings of fact unless they are clearly erroneous. See § 805.17(2), STATS. However, we review the determination of whether counsel's performance was deficient and prejudicial independently of the trial court. See State v. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d 845, 848 (1990).

Prearrest Silence

Adams first argues that his trial counsel was ineffective for failing to object to the admission of Adams' "prearrest silence." Whether Adams' right to remain silent was violated is a question involving the application of constitutional principles to undisputed facts which we review de novo. See State v. Pheil, 152 Wis.2d 523, 530, 449 N.W.2d 858, 861 (Ct.App.1989).

In this case, the jury heard testimony that shortly after Adams' supervisors, Odise Bennett, superintendent of RJDC, and Robert Barbee, division manager for the Human Services Department, learned of the allegations that he solicited sex from a female juvenile detainee, they summoned him to a mandatory meeting "regarding some allegations at the detention center." Adams failed to attend the meeting. As a result, he was fired the next morning. Letters sent to Adams informing him of this termination were returned unopened.

The State attempted to include a jury instruction regarding flight from custody, but the trial court refused to allow it. The court did permit the State to argue from the evidence that Adams' failure to attend the mandatory meeting with his supervisors or to contact them about his termination reflected on his guilt.

Adams argues that the evidence relating to his failure to appear at the mandatory meeting and the State's summation were impermissible comments on the invocation of his state and federal constitutional rights to remain silent and were improperly put before the jury. He insists that his trial counsel's failure to object to the admission of this evidence, as well as to the State's closing argument, constituted deficient, prejudicial performance.

The privilege against self-incrimination is guaranteed by Article I, Section 8 of the Wisconsin Constitution and under the Fifth Amendment of the United States Constitution. See State v. Brecht, 143 Wis.2d 297, 310, 421 N.W.2d 96, 101 (1988). The use of a defendant's silence for impeachment purposes has been long decided. It has been held improper for the State to comment upon a defendant's choice to remain silent at or before trial. See Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (defendant claiming privilege in face of accusation); Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (constitutional error to use nontestifying defendant's silence against him or her at trial); Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (constitutional error to impeach a defendant with his or her postarrest, post-Miranda silence). However, when a defendant elects to testify, references by the State during cross-examination, on redirect and in closing arguments to the defendant's pre-Miranda silence do not violate the defendant's right to remain silent. See Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (use of prearrest silence to impeach defendant does not violate Fifth Amendment); State v. Sorenson, 143 Wis.2d 226, 258, 421 N.W.2d 77, 90 (1988) (same); Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam) (use of postarrest, pre-Miranda silence to impeach testifying defendant does not violate due process).

In contrast, whether prearrest silence may be used as substantive evidence of a defendant's guilt when the defendant does not testify is much less clear. The United States Supreme Court has not yet addressed this issue. See Jenkins, 447 U.S. at 236 n. 2, 100 S.Ct. 2124 ("Our decision ... does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment.").

Federal and state courts are split on whether prearrest silence can be used as substantive evidence of guilt. Many courts have concluded that the Fifth Amendment precludes the substantive use of any silence exercised by the defendant. See, e.g., United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir.1991); Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.1989); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1018 (7th Cir.1987); State v. Easter, 130 Wash.2d 228, 922 [221 Wis.2d 9] P.2d 1285, 1290-91 (1996). In contrast, several courts have held that evidence of an accused's prearrest silence does not violate the Fifth Amendment in the absence of government compulsion to speak or remain silent prior to arrest. See, e.g., United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir.1991); Coates v. United States, 705 A.2d 1100, 1104-05 (D.C.1998); State v. Dreher, 302 N.J.Super. 408, 695 A.2d 672, 704-06 (Ct.App.Div.1997) cert. denied, --- U.S. ----, 118 S.Ct. 2353, 141 L.Ed.2d 723 (1998); State v. Kiser, 43 Conn.App. 339, 683 A.2d 1021, 1029 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 1478, 137 L.Ed.2d 690 (1997); State v. Houle, 162 Vt. 41, 642 A.2d 1178, 1181 (1994).

The Wisconsin Supreme Court seems to have aligned itself with those courts which have held that the Fifth Amendment bars substantive use of a defendant's prearrest silence that is induced by or in response to governmental action. Our supreme court has stated that the right to silence is derived from the privilege against compelled self-incrimination; therefore, absent circumstances that might compel a reasonable person to speak and incriminate himself or herself, the privilege does not arise. See Brecht, 143 Wis.2d at 312, 421 N.W.2d at 102. If a situation is neither coercive nor curtails one's freedom of action, our supreme court has held that the right to silence is not implicated. See id. If a defendant was silent in circumstances which did not trigger his or her right against compelled self-incrimination, the prosecution is free to comment on, or elicit testimony of, that silence. See id.

We conclude that Adams' right to silence was not implicated by his refusal to meet with his supervisors to discuss some allegations at the detention center. Quite simply, Adams' "prearrest silence" did not arise in the face of law enforcement questioning or even in the context of a criminal investigation. In fact, Bennett admitted that he did not explain to Adams what they intended to discuss at the meeting. Although Adams was employed by the RJDC, the mandatory meeting was not instigated as a criminal investigation; rather, it was employment related.

Despite the mandatory nature of the meeting, a reasonable person in Adams' position would not conclude that the meeting would be...