State v. Brewer

• Decision Date: 14 June 1995
• Docket Number: No. 94-1477-CR,94-1477-CR
• Citation: 536 N.W.2d 406,195 Wis.2d 295
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Curtis BREWER, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 406

536 N.W.2d 406

195 Wis.2d 295

STATE of Wisconsin, Plaintiff-Respondent, v. Curtis BREWER, Defendant-Appellant. ^d

No. 94-1477-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 27, 1995.

Opinion Released June 14, 1995.

Opinion Filed June 14, 1995.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul G. Bonneson of Brookfield.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Mary E. Burke, Asst. Atty. Gen.

Before BROWN, NETTESHEIM and SNYDER, JJ.

BROWN, Judge.

Curtis Brewer was convicted of possessing a controlled substance, cocaine base, with intent to deliver, as a party to a crime. The first issue is whether Brewer's trial co-counsel were ineffective for failing to object to a defense witness appearing in prison attire and leg restraints. We hold that co-counsel's failure to object was a tactical decision, the rationale of which was founded upon fact and law. The second issue is whether evidence of gang-related symbols found at a drug scene can be used to infer that drug dealing is occurring. We hold that it may be so used. Sufficiency of evidence and interests of justice issues are also raised, which we reject. We affirm the conviction.

The facts relating to the ineffective assistance of counsel issue are as follows. Brewer's theory of defense was that although an individual who shared his residence, Naromney Waters, sold cocaine out of their residence, Brewer had no knowledge of such drug dealing because it occurred while he was at school. Consistent with this theory, Waters testified that the cocaine base was his alone and that Brewer did not know that the cocaine was on the premises or that Waters was selling the cocaine out of the premises. Waters, in custody at the time, testified in identifiable prison attire and leg restraints.

Brewer's appellate counsel filed a postconviction motion requesting a new trial, claiming ineffective assistance of co-counsel because of their failure to object to Waters's wearing prison attire and leg restraints. At the Machner ¹ hearing, Brewer's co-counsel testified that they made a tactical decision to have Waters testify in prison clothing and restraints: "Waters was going to admit to being the guilty person and from [trial counsels'] perspective ... the worse Waters looked, the more likely the jury would say yeah, in fact, he was the dope dealer...." The trial court denied Brewer's motion for a new trial.

To prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) that his or her counsel's actions constituted deficient performance and (2) that the deficiency prejudiced his or her defense. State v. Hubanks, 173 Wis.2d 1, 24-25, 496 N.W.2d 96, 104 (Ct.App.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 99, 126 L.Ed.2d 66 (1993). The questions of whether counsel's actions were deficient and whether such actions prejudiced the defense are questions of law which we review de novo. See id. at 25, 496 N.W.2d at 104-05.

When a defendant fails to prove either prong of the test, the reviewing court need not consider the remaining prong. See id. at 25, 496 N.W.2d at 104. Here, we begin and end with the first prong. Under this prong, the defendant has the burden to prove that co-counsel were deficient; co-counsel are presumed to have provided adequate assistance. Id. at 25, 496 N.W.2d at 105. We assess the quality of co-counsel's performance by the standard of whether such performance was reasonable under the circumstances. Id. Even if it appears in hindsight that another defense would have been more effective, the strategic decision will be upheld as long as it is founded on rationality of fact and law. Id. at 28, 496 N.W.2d at 106.

Brewer contends that his co-counsel's defense strategy violated a general rule that defense witnesses should not appear in prison attire and restraints and, therefore, the strategy was based on "erroneous rationale." He relies on Harrell v. Israel, 672 F.2d 632 (7th Cir.1982), which held: "Concomitant to the defendant's right to appear before the jury without physical restraints is his right to have his witness appear that way also." Id. at 635. The Seventh Circuit acknowledged that although shackling defense witnesses "may be less prejudicial to the accused [than shackling defendants] because it does not directly affect the presumption of innocence, it nevertheless may harm his defense by detracting from his witness' credibility." Id. (citation omitted).

The State argues that the issue is not whether Brewer had a right to object to his defense witness's appearance, but whether the tactical decision of trial counsel can be founded on rationality of law and fact. We agree with the State's framing of the issue and assume that defendants have a right to object to their witnesses appearing in prison attire and restraints. ²

Brewer does not cite any authority, and we know of none, which prohibits the defense strategy of having witnesses appear in prison attire and restraints. Rather, it is inherent in our adversarial system that trial counsel may select a particular defense from the available alternatives. See Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976); see also Hubanks, 173 Wis.2d at 28, 496 N.W.2d at 106. In Estelle, 425 U.S. at 508, 96 S.Ct. at 1695, the United States Supreme Court recognized that in appropriate cases, criminal defendants may appear in prison attire as part of a defense strategy. Although Estelle held that forcing a criminal defendant to appear in prison clothing is inherently prejudicial and violates the Due Process Clause of the Fourteenth Amendment, it also noted that under "our adversarial system, ... the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and [her or] his attorney." Id. at 512, 96 S.Ct. at 1697. Here, we similarly conclude that having a defense witness appear in prison clothing and leg restraints, which is arguably less prejudicial to the defense than having the defendant so appear, see Harrell, 672 F.2d at 635, can be part of a reasonable defense strategy.

Thus, we address the question of whether co-counsel's defense strategy was reasonable under the circumstances. Although co-counsel were aware that the jury might doubt Waters's credibility based on his attire, we nonetheless hold that it was reasonable to strategize that the jury would instead visit all unlawful activity on the person in prison attire, Waters, rather than on Brewer, who was dressed in civilian clothing. Waters's appearance likely put him in a bad light--that he was a criminal in custody--but also suggested to the jury that Waters's confession had been judicially confirmed. That a different choice might have been made by co-counsel is to no avail for Brewer's ineffective assistance claim. See Hubanks, 173 Wis.2d at 28, 496 N.W.2d at 106.

Brewer also challenges the factual predicate to this analysis, arguing that his co-counsel never actually considered whether to put Waters on the stand in prison attire--that co-counsel simply missed the issue. We reject this challenge. At the Machner hearing, the trial court found that Brewer's two trial attorneys developed a defense strategy to make Waters "look as horrendous and horrifying as possible." We hold that its finding is not clearly erroneous. See Hubanks, 173 Wis.2d at 25, 496 N.W.2d at 104. We conclude that Brewer has not satisfied his burden of showing that his trial co-counsel were defective.

Next, we address whether the testimony connecting gang activity to drug activity was improperly admitted. The facts concerning this issue are as follows. The State's theory of the case was that Brewer provided his residence as a base of operation for gang-related drug trafficking. During the State's case-in- a police officer testified that during a search of Brewer's bedroom, he found a notebook containing gang graffiti. Over defense objection, the notebook was received into evidence.

An investigator for the police department in the street crimes unit gave opinion testimony about the connection between gang-related materials and drug offenses; specifically, whether he had "come across gang-related materials when conducting drug search warrants." Brewer objected on the basis that the testimony was not relevant because there was no evidence that Brewer was a member of a gang and that the evidence was unfairly prejudicial. During the offer of proof, the State argued that it did not intend to show that Brewer was a member of a gang. Rather, it intended to show that gang materials are one indicator of drug dealing.

The trial court ruled that the evidence was not unfairly prejudicial and, because Brewer was charged as a party to the crime, the evidence was relevant. The trial court further ruled that under State v. Williams, 168 Wis.2d 970, 485 N.W.2d 42 (1992), overruled on other grounds by State v. Stevens, 181 Wis.2d 410, 511 N.W.2d 591 (1994), cert. denied, 515 U.S. 1102, 115 S.Ct. 2245, 132 L.Ed.2d 254 (1995), and State v. Whitaker, 167 Wis.2d 247, 481 N.W.2d 649 (Ct.App.1992), the investigator's testimony was admissible as expert opinion testimony establishing the "nexus between gang activity and drug involvement."

The investigator then testified that in the geographic area including Brewer's neighborhood, "it would be more likely than not that [a police officer] may encounter gang-related materials during the execution of a [drug] search warrant, and this would indicate to [him] there is some form of potential gang affiliation with persons within the residence and a specific gang...." The investigator also testified that during the search of Brewer, a pager was found, and that pagers are commonly used by drug dealers to maintain contact with customers and suppliers.

The admissibility of evidence is directed to the sound discretion of ...