State v. Cooper
| Decision Date | 19 May 1988 |
| Citation | 145 Wis.2d 897,428 N.W.2d 562 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN, Plaintiff-Respondent, v. CHARLES COOPER, Defendant-Appellant. 87-1620. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Racine County
Affirmed
Appeal from an order of the circuit court for Racine county: EMMANUEL VUVUNAS, Judge.
BEFORE MOSER, P.J., WEDEMEYER AND SULLIVAN, JJ.
Charles Cooper appeals from an order of the circuit court denying his sec. 974.06, Stats., motion. Cooper raises three issues: (1) whether his right to compulsory attendance of witnesses on his behalf was denied; (2) whether his right to a public trial was denied; and (3) whether he should be granted a new trial based on newly discovered evidence. Because the first issue was already litigated and decided adversely to Coopper on direct appeal, because there is no factual record to support his claim that he was denied his right to a public trial, and because the evidence does not meet the test for newly discovered evidence, we affirm.
On February 26, 1976, Cooper was charged with attempted first-degree murder and armed robbery. The crimes occurred on February 16, 1976, at about 10:55 a.m. in Veto's Food Shop. The day before the jury trial was to begin, the defense moved for an adjournment for a few days in order to obtain additional witnesses. The motion was denied. At trial, Cooper and several witnesses testified for the defense. A guilty verdict was returned on each count.
Cooper appealed to the supreme court. The case was transferred to the court of appeals, which affirmed the judgment and order, holding that the trial court did not err in denying Cooper's request for a continuance. The court of appeals also rejected Cooper's claims that the trial court erred in not sua sponte taking measures to insure that he was tried by a fair and impartial jury.
The record shows that Cooper pursued several avenues of relief following his initial unsuccessful peal. The current appeal is from an August 7, 1987, order denying post-conviction relief. Several hearings were held relevant to this particular matter. The trial court concluded that the evidence was sufficient to support the conviction, that the testimony of the alleged newly-discovered evidence would not make it probable that a new trial would produce a different result, and that the supreme court had already ruled on the trial court's refusal to grant an adjournment.
Cooper first contends that his right to compulsory attendance of witnesses on his behalf was denied, contrary to the sixth amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution. The basis for this claim is the trial court's denial of his request for an adjournment to find and subpoena certain witnesses. The only case Cooper cites is Elam v. State, 50 Wis. 2d 383, 184 N.W.2d 176 (1971).
This claim is identical to an issue Cooper raised in his direct appeal. In that appeal, Cooper argued that the denial of an adjournment was an abuse of discretion and a violation of his state and federal constitutional rights. The court of appeals relied on Elam, which Cooper cited in his direct appeal, to reject this claim. We conclude that this issue was fairly and adequately litigated in Cooper's direct appeal and it cannot be relitigated on a sec. 974.06, Stats., motion. See State v. Brown, 96 Wis. 2d 238, 241, 291 N.W.2d 528, 531, cert. denied, 449 U.S. 1015 (1980). 1
Secondly, Cooper contends that his right to a public trial was violated, contrary to the sixth amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution, because black citizens were excluded from the courtroom prior to the time the jury returned its verdict. 2 He does not, however, cite to any part of the record to substantiate his claim that black persons were excluded. The only record reference in his brief is to his own testimony of May 25, 1984, during a hearing on his postconviction motions. On that occasion, he testified that black people were allowed to stay in the courtroom until the jury went in for deliberation, but when the jury reached their verdict the black citizens were not allowed to return to the courtroom. He stated that an officer was posted at each exit and would not allow the black citizens to return.
In his brief, however, Cooper claims that the court entered an order requiring that all black people in the courtroom be excluded before the reading of the verdict, but allowing the white people to remain in the courtroom. Cooper has not cited to any such order in the record. The transcript contains absolutely no indication that black citizens were excluded from the courtroom when the jury returned its verdict. There was no objection at the time on the record to such an occurrence, nor did Cooper's counsel raise this claim in motions after verdict or on direct appeal.
This court's review is limited to those matters which appear of record. Ryde v. Dane County Dept. of Social Servs., 76 Wis. 2d 558, 563, 251 N.W.2d 791, 793 (1977). An appellant's claim must be found to be without substance or foundation if there are no facts in the record to support it. See Kutchera v. State, 69 Wis. 2d 534, 549, 230 N.W.2d 750, 758 (1975); Johnson v. State, 75 Wis. 2d 344, 370, 249 N.W.2d 593, 606 (1977). The court cannot grant relief on the basis of one party's unverified and unsupported recollections of what occurred at trial. See Johnson, 75 Wis. 2d at 370, 249 N.W.2d at 606. It is inconceivable that had there been a court order or requirement that all black spectators remain outside of the courtroom, there would be no record of, or objection to, such an event. Because the record contains no factual support for Cooper's assertions, we cannot decide the issue.
Lastly, Cooper contends that he is entitled to a new trial based on newly discovered evidence. We reject this claim for two reasons: (1) this is basically a rehash of the claim of trial court error in not granting a continuance and (2) the evidence that he claims is new evidence does not meet the test for newly discovered...
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