State v. Demetrius M. Boyd
| Decision Date | 25 January 2011 |
| Docket Number | No. 2010AP1090–CR.,2010AP1090–CR. |
| Citation | 2011 WI App 25,797 N.W.2d 546,331 Wis.2d 697 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent,v.Demetrius M. BOYD, Defendant–Appellant.† |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the defendant-appellant, the cause was submitted on the briefs of Rebecca R. Lawnicki of Henak Law Office, S.C., Milwaukee.On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general and Thomas J. Balistreri, assistant attorney general.Before FINE, KESSLER and BRENNAN, JJ.FINE, J.
[331 Wis.2d 703] ¶ 1 Demetrius M. Boyd appeals a judgment convicting him of twenty crimes . He also appeals the circuit court's denial of his motion for postconviction relief.1 He claims that he is entitled to a new trial because: (1) the trial court should have given him a new lawyer when he complained about his trial lawyer; and (2) he contends that his trial lawyer gave him constitutionally deficient representation. He also argues that convicting him on bail-jumping counts based on criminal acts for which he was also convicted violated his double-jeopardy rights. Finally, he asserts that the circuit court should have granted him an evidentiary hearing on the issues he raised in his postconviction motion. We affirm.
¶ 2 The jury convicted Boyd of crimes involving four victims. The jury found that Boyd and two associates robbed Abdel Hussein, Basil Awieus, and Monged Asad with a sawed-off shotgun shortly after 9:00 p.m. on January 3, 2008. The jury also found that Boyd battered Lanita Skinner, the mother of Boyd's son, and threatened her with a shotgun several hours after the January 3 robbery. 2
¶ 3 Hussein told the jury that he had just closed the liquor store where he worked and was in the store's parking lot with Awieus, his uncle, and Asad, his cousin, when three men drove into the parking lot in a van, jumped from the van, and, armed with a shotgun, took things from their pockets and Hussein's black Nissan Maxima. The testimony of Awieus and Asad was essentially the same, and surveillance tapes of the parking lot substantiated their testimony. None of the men could identify any of the robbers, however, because they wore masks.
¶ 4 Boyd's two accomplices also testified about the robbery, and supported the victims' testimony. One, Dennis Nickelson, told the jury that he, Kenyarie Washington, and Boyd were driving around in the van looking for someone to rob. According to Nickelson, the robbery was Boyd's idea. When they arrived at the store, Boyd gave the shotgun to Nickelson, who held it while Washington told everyone to get on the ground. Washington took Hussein's Maxima, and Nickelson and Boyd went to Nickelson's house. The three of them met up later and drove with Skinner to where Boyd wanted Skinner to rob her sister's boyfriend, which Skinner told the jury was her idea to divert Boyd's attention from her because he had been hitting her. They were in Hussein's Maxima and Boyd was driving. Skinner said that when Boyd became frustrated because she did not get the money, he threatened her with the shotgun, and that she soiled herself from fear. Washington's testimony was similar to that of Nickelson and Skinner.
¶ 5 As luck would have it, a police officer, Michael Vagnini, later saw Hussein's Maxima run through a stop sign, and tried to stop the car. After chasing the Maxima at speeds reaching some eighty miles per hour, Vagnini told the jury that a man jumped from the car while it was still moving, albeit slowly, and, after a foot chase, Vagnini caught him. The man was Boyd. When captured, Boyd had Hussein's credit and debit cards and Hussein's driver's license, and also Asad's check and credit cards.
[331 Wis.2d 706] ¶ 6 After his arrest, Boyd voluntarily gave the police a DNA sample. A technician employed by the State Crime Laboratory testified that she matched Boyd's sample to DNA found on the Maxima's steering wheel.
¶ 7 Boyd testified and denied all the charges. He told the jury that he was just standing around when Vagnini stopped the Maxima, which he denied driving, and that the officers planted the victims' property on him. He admitted, however, that he had earlier told the police that he was in the Maxima with two other men who gave him the victims' cards, testifying that he told the police “several different stories” about the cards. He also claimed that he was at Skinner's house “an hour of 9:00” the night of January 3. He denied knowing Nickelson. As we have seen, the jury convicted Boyd on all charges except the one alleging that he battered Skinner in December of 2007 and the underlying bail-jumping charge. We now turn to his contentions on appeal.
¶ 8 Although, with exceptions not material here, persons have the right to retain counsel of choice, indigent defendants in criminal cases may not select the lawyers who represent them. State v. Jones, 2010 WI 72, ¶¶ 38–42, 46, 326 Wis.2d 380, 407–410, 412, 797 N.W.2d 378. An indigent defendant does, however, have the right to a lawyer with whom he or she can communicate effectively. Id., 2010 WI 72, ¶ 25, 326 Wis.2d at 397–98, 797 N.W.2d at 387–88. When an indigent defendant seeks a new lawyer because of an alleged breakdown in their communication, the trial court must consider two factors: (1) whether the request for a new lawyer is timely, and (2) “ ‘whether the alleged conflict between the defendant and the attorney was so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case.’ ” Ibid., (quoted source omitted). A request for a new lawyer is timely if it is made when the “total lack of communication” becomes evident, even though that might be on the eve of trial. Id., 2010 WI 72, ¶ 30, 326 Wis.2d at 401–402, 797 N.W.2d at 389. A trial court has discretion to deny a indigent defendant's request for a new lawyer, and we will uphold the trial court's decision if it “ ‘examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.’ ” Id., 2010 WI 72, ¶ 23, 326 Wis.2d at 397, 797 N.W.2d at 387 (quoted source omitted). Thus, we must assess “ ‘the adequacy of the [trial] court's inquiry into the defendant's complaint.’ ” Id., 2010 WI 72, ¶ 25, 326 Wis.2d at 397–398, 797 N.W.2d at 388 (quoted source omitted). Although we review de novo whether the trial court correctly applied the applicable law, see State v. White, 2008 WI App 96, ¶ 9, 312 Wis.2d 799, 806, 754 N.W.2d 214, 218, a trial court's findings of fact are binding on us unless they are “clearly erroneous,” State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990), and those findings may be implicit in the trial court's ultimate conclusion, Schneller v. St. Mary's Hosp. Med. Ctr., 162 Wis.2d 296, 311, 470 N.W.2d 873, 879 (1991).
¶ 9 Boyd asserts that the trial court erred in not letting him have a new lawyer, contending that it applied the wrong standard (whether the lawyer was giving Boyd ineffective representation, rather than whether there was the requisite complete breakdown in communication). As explained below, we disagree.
¶ 10 Boyd asked for a new lawyer twice: five days before the trial and during the trial. We look at each in turn.
¶ 11 The first time Boyd told the trial court that he wanted a new lawyer was when it appeared that a police officer whom the State had subpoenaed and the defense wanted to call as a trial witness was going to be out of the country when the trial was scheduled. The State and Boyd's lawyer agreed that the officer's testimony would be preserved by deposition. See Wis. Stat. § 967.04. Boyd told the trial court that he preferred to have the officer testify in front of the jury at the trial, and offered to waive his right to a speedy trial. He complained that he first learned the previous evening that the trial court would hold a hearing to see whether the officer's testimony should be taken by deposition. He said that he “would have liked to have known about, you know, him taking this trip at least 30 days before hand so we could have prepared for this.” He added that “it was just on short notice, and I'm afraid I don't feel comfortable.” The trial court ordered that the officer's testimony be preserved by deposition.3
[331 Wis.2d 709] ¶ 12 At the end of the hearing on whether to preserve the officer's testimony by deposition, Boyd's lawyer told the trial court, “I don't know if my client has concerns about my representation or not.” When the trial court asked Boyd whether he wanted a new lawyer, Boyd responded, “Yeah, sure.” When asked to explain, Boyd said: “Me and my attorney is having a lot of conflict issues.” The trial court then asked:
What type of conflicts? I don't want to know...
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