State v. Carnemolla

• Decision Date: 29 July 1999
• Docket Number: No. 98-2928-CR.,98-2928-CR.
• Citation: 229 Wis.2d 648,600 N.W.2d 236
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert CARNEMOLLA, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

229 Wis.2d 648

600 N.W.2d 236

STATE of Wisconsin, Plaintiff-Respondent, v. Robert CARNEMOLLA, Defendant-Appellant.¹

No. 98-2928-CR.

Court of Appeals of Wisconsin.

Submitted on briefs June 4, 1999.

Decided July 29, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert T. Ruth of Ruth Law Office of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, with Jennifer E. Nashold, assistant attorney general.

Before Dykman, P.J., Eich and Vergeront, JJ.

EICH, J.

Robert Carnemolla appeals from a judgment convicting him of substantial battery and from an order denying his motion for postconviction relief. He argues that: (1) he was deprived of due process when one of the State's witnesses, Michael Morris, testified that he (Morris) had two prior convictions, when in fact he had three;² and (2) the circuit court erroneously exercised its discretion when it denied his motion for a new trial based on newly discovered evidence. We reject his arguments and affirm the judgment and order.

The charge arose from an altercation between Carnemolla and another man, Brian Peters, at a time when both men were inmates at the Fox Lake Correctional Institution. Peters testified that, while he was asleep in his cell, Carnemolla cut his arm with a razor blade embedded in the handle of a toothbrush. Carnemolla argued self-defense, claiming that Peters was the initial aggressor. He testified that Peters came at him with the toothbrush-weapon and he was unintentionally cut during the ensuing struggle.

Michael Morris, another Fox Lake inmate, testified for the State at trial. Prior to trial, Carnemolla had requested disclosure of the criminal records of potential prosecution witnesses. The Crime Information Bureau report provided by the prosecution listed two armed robbery convictions for Morris. It also showed that Morris had been charged with auto theft, but did not indicate any conviction. In truth, Morris had been convicted of the theft charge. In preliminary testimony taken outside the jury's presence, Morris stated that he had two prior convictions for armed robbery. Neither side questioned him regarding the auto theft charge. The parties then stipulated that Morris, if asked, should testify that he had two prior convictions, and the court agreed. Morris testified as instructed.

At the trial's conclusion, the jury found Carnemolla guilty as charged and he was sentenced to eight years in prison.

Learning for the first time after trial that Morris had in fact been convicted of auto theft in addition to the two armed robberies, Carnemolla moved for a new trial, claiming that his due process rights were violated by Morris's incorrect testimony about his prior convictions and, alternatively, that his trial counsel was ineffective for failing to discover the true facts. He also sought a new trial on grounds of newly discovered evidence in the form of testimony by another inmate that, among other things, he had seen Peters with a toothbrush-knife before the altercation with Carnemolla. The circuit court denied both motions.

The Witness's Prior Convictions

Carnemolla claims that Morris's testimony violated his due process rights because it prejudiced his defense in three ways: (1) it misled the jury into believing that Morris had fewer convictions than he actually had, making him look more credible than he really was; (2) had he known Morris's testimony was untrue he would have been permitted to inform the jury of the nature of the prior convictions—emphasizing their seriousness; and (3) he could have argued to the jury that, having testified untruthfully about his prior convictions, Morris may have been lying about other aspects of the case as well. The circuit court concluded that any error or untruth in Morris's testimony about his prior convictions was harmless beyond a reasonable doubt.

[1]

An error is harmless if there is no reasonable possibility that it contributed to the conviction. See State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222, 231-32 (1985)

. A "reasonable possibility" is one which is sufficient to undermine our confidence in the outcome of the proceeding. State v. Patricia A.M., 176 Wis. 2d 542, 556, 500 N.W.2d 289, 295 (1993). We review the circuit court's harmless-error conclusion de novo, State v. Keith, 216 Wis. 2d 61, 69, 573 Wis. 2d 888, 892-93 (Ct. App. 1997), and the State, of course, bears the burden of proof on the issue. State v. Sullivan, 216 Wis. 2d 768, 792, 576 N.W.2d 30, 41 (1998).

The circuit court reasoned as follows in denying Carnemolla's motion:

The Court finds that whether there were two convictions or three convictions did not make any difference ... concerning the credibility of Mr. Morris. Mr. Morris was there as an inmate. [The jury] certainly knew that he had been convicted ... of a serious crime, ... by reason of the fact that he was ... an inmate having been housed in the Wisconsin State Prison. The Court does not believe that it made any difference whatsoever to the jury whether he was convicted of two or three. This isn't a situation where whether it had been two or ten. The Court finds that the failure of the State to correctly state the number of convictions as three in [no] way impacted on the results of the trial.

Our independent review of the record and the applicable law satisfies us, as it did the circuit court, that there is no reasonable possibility that the prosecution's failure to investigate and disclose Morris's third conviction contributed to Carnemolla's conviction. As the court indicated, the jury was well aware that Morris, a Wisconsin State Prison inmate, had been convicted of at least one serious crime. And, as the State points out, it is likely that Morris's credibility was further implicated when he appeared before the jury wearing prison clothes and admitting to two prior convictions. As to Carnemolla's argument that, had he known of the third conviction, he would have been able to put the nature of all three before the jury, we answer the argument with the observation that there is no reason to believe that, had Morris's third conviction been known ahead of time, anything would have been handled any differently—the parties' stipulation would simply have reflected three, rather than two, convictions.³ Finally, Carnemolla's one-sentence argument that "the fact that Morris lied about his convictions suggests that he may have lied about other aspects of the case," needs no broader response than that it is unavailing.

[2]

While it is true that a higher number of convictions may suggest less credibility on a witness's part, see State v. Smith, 203 Wis. 2d 288, 297-98, 553 N.W.2d 824, 828 (Ct. App. 1996), the question is one of degree. The State observes in its brief that "[t]his is not a case of one conviction versus eleven ... or none versus some ... [and the] marginal difference between two and three convictions cannot be considered so substantial as to undermine the jury's verdict." We agree. Cf. State v. Boshcka, 178 Wis. 2d 628, 643-44, 496 N.W.2d 627, 632 (Ct. App. 1992)

(defendant's admission to five convictions rather than the true number, four, held to be harmless error); State v. Bowie, 92 Wis. 2d 192, 202, 204, 284 N.W.2d 613, 617 (1979) (defendant's admission to four convictions when he only had one, held to be harmless error). We think the difference between two and three convictions was marginal, and certainly not substantial enough to have affected the jury's verdict. We therefore conclude that the error was harmless beyond a reasonable doubt, and thus could not have prejudiced Carnemolla's defense.

[3]

It follows that Carnemolla's ineffective-assistance-of-counsel argument is equally unavailing. To prevail on such a claim, he must establish: (1) that his attorney's performance was deficient; and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711, 714 (1985). If he fails to satisfy either test, his argument must fail. State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845, 848 (1990). We have held that any error with respect to Morris's testimony was harmless beyond a reasonable doubt—that it did not prejudice Carnemolla's defense. That being the case, the ineffective-assistance argument must fail as well. Newly Discovered Evidence

[4, 5]

Carnemolla next argues that the circuit court erred when it denied his motion for a new trial based on newly discovered evidence. A new trial will be granted on such grounds only if the defendant establishes by clear and convincing evidence, that: (1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking to discover it; (3) the evidence is material to an issue in the case; (4) the evidence is not merely cumulative to the testimony introduced at trial; and (5) it is reasonably probable that, with the evidence, a different result would be reached at a new trial. State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707, 710-11 (1997); State v. Krieger, 163 Wis. 2d 241, 255, 471 N.W.2d 599, 604 (Ct. App. 1991); see also § 805.15(3), STATS. The motion is addressed to the trial court's sound discretion and we will affirm the circuit court's decision if it has a reasonable basis and was made in accordance with accepted legal standards and facts of record. State v. Jenkins, 168 Wis. 2d 175, 186, 483 N.W.2d 262, 265 (Ct. App. 1992).

As is the case with ineffective-assistance-of-counsel motions, a defendant advancing a newly discovered evidence argument must satisfy each of the five criteria to warrant a new trial, State v. Sarinske, 91 Wis. 2d 14, 38, 280 N.W.2d 725, 736 (1979). While the circuit court noted that the evidence—the other inmate's observations of a toothbrush-knife in Peters's possession—would be somewhat cumulative, the circuit court...