State v. Brown-Troop
| Decision Date | 07 August 2018 |
| Docket Number | Appeal No. 2017AP1254-CR |
| Citation | 384 Wis.2d 271,921 N.W.2d 15 (Table),2018 WI App 62 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Shawn Joseph BROWN-TROOP, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶ 1 Shawn Joseph Brown-Troop appeals from a judgment, entered upon a jury’s verdicts, convicting him on two counts of armed robbery with the threat of force as a party to a crime. Brown-Troop also appeals from an order that denied his postconviction motion without a hearing. Brown-Troop alleges multiple instances of ineffective assistance from trial counsel and he claims the trial court erred when it denied his request for a new lawyer on the first day of trial. We conclude that trial counsel was not ineffective in his representation of Brown-Troop and that the trial court properly exercised its discretion relative to his request for new counsel and an evidentiary hearing. We therefore affirm the judgment and order.
¶ 2 Around 8:20 p.m. on September 25, 2015, a GameStop store in Greenfield was robbed. Three masked robbers entered the store; the first had white shoes and a gun. One employee, S.B., was ordered to sit on the floor while the armed robber took her boss, E.L., into a back room where merchandise was stored. While E.L. was in the back, the other two robbers took S.B.’s keys and cell phone from her, then dragged her by her hair to a cash register and ordered her to open it. The robbers took cash and merchandise and fled the store. Neither S.B. nor E.L. could identify any of the robbers.
¶ 3 Meanwhile, the manager of a nearby Outback Steakhouse restaurant stepped outside for a cigarette sometime between 8 and 8:30 p.m. He noticed a suspicious vehicle turn off its headlights and back into a parking stall in a neighboring lot. The manager called police, and Greenfield Police Officer Sean Doonan was dispatched to investigate. While he was on his way to the restaurant, Doonan heard the report about the GameStop robbery. Doonan believed there was a "high probability" the calls were related because the two locations were about a block apart. Doonan activated his lights and siren.
¶ 4 The restaurant manager spotted law enforcement vehicles headed toward the GameStop and noticed that the suspicious vehicle "peeled out" of its stall. The manager also saw someone jump into a dumpster. When Doonan arrived, the manager reported what he had observed, stating those events had happened five to thirty seconds before the officer had arrived. The manager further noted that the man in the dumpster had been running to the north and east—in other words, he was coming from the direction of GameStop.
¶ 5 Doonan investigated the dumpster and found Brown-Troop standing behind it. Doonan ordered him out at gunpoint. Although it was only sixty degrees outside, Brown-Troop was sweating profusely through his t-shirt. Brown-Troop was handcuffed. He told police he had been behind the dumpster to urinate. When Doonan searched Brown-Troop, he found $126 crumpled up in Brown-Troop’s front pants pocket. His white shoes were later collected by police.
¶ 6 Around the time of the robbery, a Milwaukee County bus driver was on a layover on South 74th Street behind a Petco store, just north of the GameStop. While standing outside his bus for his break, he watched three men climb a wall and run northbound, away from the area of the GameStop. He heard one man say "hurry up" and observed that they were all wearing black or dark clothing, and at least one of them wore something with a hood.
¶ 7 Greendale Police Officer Anthony Fitzgerald and his K-9 partner, Nova, were dispatched to the robbery around 8:30 p.m. Fitzgerald spoke to the bus driver, who reported what he had seen, then spoke to other officers, who said they were setting up a perimeter. Fitzgerald then used Nova to search for evidence, as Nova is purportedly able to track "fresh human scent." They started near where the bus driver had seen the three men. Nova located crumpled cash in a nearby business parking lot, a black hooded sweatshirt in some bushes, and a revolver fifteen to twenty feet from the sweatshirt. DNA on the sweatshirt was later matched to Brown-Troop. Brown-Troop was thus charged with two counts of armed robbery with the threat of force as a party to a crime.
¶ 8 At a final pretrial hearing on March 28, 2016, Brown-Troop requested a new attorney, stating that trial counsel had not shared evidence with him, including a video of the robbery. The State, temporarily represented by a substitute assistant district attorney, said she had not seen such a video in the file. Trial counsel believed that Brown-Troop was asking about a different video and told the trial court he would be happy to show it to Brown-Troop. Upon that reassurance, Brown-Troop told the court his concerns were resolved.
¶ 9 Two weeks later, on the first day of trial, Brown-Troop again requested a new attorney. He told the trial court that he disagreed with counsel’s recommendation to plead guilty and stated that he had not yet seen the video of the robbery. The court explained that it was counsel’s duty to advise Brown-Troop of what he thought was the best course of action, but Brown-Troop could choose to follow that advice or not, so that disagreement was not grounds for a new attorney. After some discussion, the trial court granted a recess and returned to chambers for ten to fifteen minutes to allow Brown-Troop and counsel to watch and discuss the robbery video. When the recess ended, the court asked if there was anything else to discuss, and counsel said no. Brown-Troop did not personally attempt to renew his objection to counsel. The jury was brought in and trial began. The jury subsequently convicted Brown-Troop on both counts, and the court imposed concurrent sentences of thirteen years’ initial confinement and ten years’ extended supervision on each count.
¶ 10 Brown-Troop filed a postconviction motion seeking a new trial. He argued trial counsel had been ineffective in multiple ways. He also claimed the trial court erred when it denied his request for a new attorney. The court denied the motion without a hearing. Brown-Troop appeals. Additional facts will be discussed herein as necessary.
¶ 11 "A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief." State v. Allen , 2004 WI 106, ¶ 14, 274 Wis. 2d 568, 682 N.W.2d 433. Whether the motion alleges such facts is a question of law. See id. , ¶ 9. If the motion raises sufficient material facts, the trial court must hold a hearing. See id. If the motion does not raise sufficient material facts, if the motion presents only conclusory allegations, or if the record conclusively shows the defendant is not entitled to relief, then the decision to grant or deny a hearing is left to the trial court’s discretion. See id.
¶ 12 The trial court has the discretion to deny "even a properly pled motion ... without holding an evidentiary hearing if the record conclusively demonstrates that the defendant is not entitled to relief." See State v. Sulla , 2016 WI 46, ¶ 30, 369 Wis. 2d 225, 880 N.W.2d 659. A trial court’s discretionary decisions are reviewed for an erroneous exercise of that discretion, a deferential standard. See id. , ¶23. Our review is limited to the four corners of the postconviction motion, not additional arguments raised in the appellant’s brief. See Allen , 274 Wis. 2d 568, ¶ 27.
¶ 13 To prevail on an ineffective assistance claim, the defendant must show both that counsel was deficient and that the deficiency was prejudicial. See State v. Erickson , 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). To show deficient performance, "the defendant must identify specific acts or omissions ... that fall ‘outside the wide range of professionally competent assistance.’ " See State v. Taylor , 2004 WI App 81, ¶ 13, 272 Wis. 2d 642, 679 N.W.2d 893 (citation omitted). The test for prejudice is " State v. Balliette , 2011 WI 79, ¶ 24, 336 Wis. 2d 358, 805 N.W.2d 334 (citation omitted). Claims of ineffective assistance of counsel present mixed questions of fact and law. See State v. Thiel , 2003 WI 111, ¶ 21, 264 Wis. 2d 571, 665 N.W.2d 305. We uphold a trial court’s findings of fact unless they are clearly erroneous, but whether those facts show that counsel was ineffective is a question of law. See id.
¶ 14 A defendant must satisfy both prongs of the ineffective assistance test; we need not address both if the defendant fails to make a sufficient showing on one. See State v. Maloney , 2005 WI 74, ¶ 14, 281 Wis. 2d 595, 698 N.W.2d 583. We additionally note that, when it comes to reviewing an attorney’s performance, there is a strong presumption that counsel’s conduct is reasonable. See State v. Carter , 2010 WI 40, ¶ 22, 324 Wis. 2d 640, 782 N.W.2d 695. An attorney’s performance "need not be perfect, nor even very good, to be constitutionally adequate." See id.
¶ 15 Brown-Troop first complains that trial counsel was ineffective for failing to file a suppression motion that would have challenged his warrantless arrest as unlawful and lacking probable cause. Had counsel done so, Brown-Troop believes that he would have prevailed on the motion, resulting in suppression of the cash found on Brown-Troop, Brown-Troop’s statement about why he was behind the dumpster, any observations about Brown-Troop—i.e. , that he was sweating profusely in cool weather—made while he was in custody, the clothes1 confiscated from Brown-Troop following his arrest, and Brown-Troop’s shoes or photos thereof, taken...
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