State v. Demmerly

• Decision Date: 10 August 2006
• Docket Number: No. 2005AP181.,2005AP181.
• Citation: 2006 WI App 181,722 N.W.2d 585
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Dion W. DEMMERLY, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

722 N.W.2d 585

2006 WI App 181

STATE of Wisconsin, Plaintiff-Respondent, v. Dion W. DEMMERLY, Defendant-Appellant.^†

No. 2005AP181.

Court of Appeals of Wisconsin.

Submitted on Briefs January 19, 2006.

Opinion Filed August 10, 2006.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Edward John Hunt of Hunt & Quinn S.C., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before LUNDSTEN, P.J., DYKMAN and DEININGER, JJ.

¶ 1 DYKMAN, J

Dion Demmerly appeals from an order denying his WIS. STAT. § 974.06 (2003-04)¹ postconviction motion. Dion asserts that having attorneys from the same law firm represent him and his co-defendant brother, Douglas Demmerly, created an actual conflict of interest.² He contends that the trial court had an obligation to override his waiver of conflict-free representation. Dion also contends that he was denied effective assistance of counsel because the alleged conflict of interest compromised his defense. Finally, Dion contends that his counsel's failure to request a jury instruction on the defense of accident constituted ineffective assistance of counsel. Because we determine that the trial court did not have an obligation to override Dion's waiver of conflict-free representation, we conclude that his waivers were valid. In addition, we conclude that Dion has not met his burden of proving ineffective assistance of counsel based on his attorney's cross-examination of Douglas or his failure to request a jury instruction on accident.

BACKGROUND

¶ 2 The relevant facts of the case are as follows. On July 3, 1993, someone burglarized Dion Demmerly's fireworks stand. Dion suspected that James Lane was responsible. Dion, his brother, Douglas Demmerly, Douglas's son, Jason Demmerly, and Jason's friend, Brandon Brownlee, followed the suspect to his home. Through the window of Lane's home, Dion saw what he believed was the stolen merchandise. The Demmerlys and the two other men returned home. Dion and Douglas armed themselves and the four men went back to Lane's house. Douglas brought a shotgun and a .22 pistol and Dion carried a double-barreled sawed-off shotgun and a protective vest. When they arrived, James, armed with a .22 caliber rifle, and his brother, Joel Lane, came outside onto the porch and a confrontation ensued regarding the stolen merchandise. Brandon and Jason remained in the car during the argument and left in the midst of the confrontation. The argument intensified and resulted in Dion fatally shooting James. No one witnessed the shooting.

¶ 3 The State charged Dion with first-degree intentional homicide. The State also charged Douglas as a party to the crime of first-degree intentional homicide. See State v. Demmerly, No. 93-2235, unpublished slip op. at 1, 1994 WL 98495 (Wis.Ct.App. Mar. 29, 1994). Dion retained Attorney Brian M. Maloney of Appleton, Wisconsin, and Douglas retained Attorney Mary Lou Robinson, of the law firm of Robinson, Robinson, Peterson, Berk & Cross, also of Appleton, Wisconsin. At a preliminary hearing, the trial court dismissed the charges against Douglas based on a lack of probable cause.

¶ 4 Dion replaced Attorney Maloney with Attorney Avram D. Berk of Robinson, Robinson, Peterson, Berk & Cross. Shortly thereafter, the Oconto County District Attorney filed a motion asking the trial court to inquire into a possible conflict of interest because Attorney Berk was a member of the same law firm as Attorney Mary Lou Robinson, who continued to defend Dion's brother, Douglas, in the State's appeal of the trial court's dismissal of the charges against Douglas. At a motion hearing, Robinson opposed the motion and stated that Douglas would waive any potential conflict. Attorney Berk also opposed the motion. Dion responded to questions of the court regarding the knowingness of his waiver of the potential conflict and the court accepted his waiver.

¶ 5 In March 1994, we reversed the order dismissing the complaint against Douglas. State v. Demmerly, No. 93-2235, unpublished slip op. at 1, 1994 WL 98495 (Wis.Ct.App. Mar. 29, 1994). The State re-charged Douglas, this time with second-degree reckless homicide. As a result, Dion and Douglas became co-defendants again, and the district attorney asked the court to conduct a new inquiry into the potential conflict of interest. During the motion hearing, the court engaged in a colloquy with Douglas and Dion and accepted their waivers of conflict-free representation.

¶ 6 Dion's trial began in January 1995. Prior to opening statements, Douglas testified as a witness for the State, outside the presence of the jury. Under questioning by the district attorney, Douglas asserted his Fifth Amendment right to remain silent and the State moved to grant Douglas use immunity. The court granted the motion. This ruling led the court to revisit the conflict of interest issue for a third time. Again, the court accepted Dion's and Douglas's waivers of the conflict in having attorneys from the same law firm represent them.

¶ 7 Dion's theory of the case was that he did not intend to shoot Lane, but that Dion's gun discharged by accident when he tried to block Lane's gun in self-defense. Dion requested a jury instruction on self-defense, but did not request an instruction on accident. At the conclusion of a seven-day trial, the jury found Dion guilty of first-degree intentional homicide.

¶ 8 In March 1996, Dion filed a motion for postconviction relief challenging evidentiary rulings and alleging discovery violations. He asserted that there was insufficient evidence to support his conviction. The circuit court denied the motion. Dion then retained Attorney Paul Wagner, of the same law firm as Mary Lou Robinson, and appealed the circuit court's denial of his postconviction motion and the judgment of conviction. We affirmed the circuit court's decision. State v. Demmerly, No. 96-1898, unpublished slip op. at 4, 1996 WL 737272 (Wis.Ct.App. Dec. 27, 1996).

¶ 9 In October 2003, Dion filed a motion for postconviction relief, pursuant to WIS. STAT. § 974.06. In the motion, Dion contended that the performance of Attorney Berk at trial and during postconviction proceedings was ineffective because of the conflict of interest and Berk's failure to request a jury instruction on accident. In addition, Dion asserted that his appellate counsel, Attorney Wagner, was ineffective for failing to raise the conflict of interest issue and for laboring under the same alleged conflict that existed at the trial level because Wagner was a member of Robinson's law firm.³ Finally, Dion contended that the trial court erroneously exercised its discretion by failing to disqualify Attorney Berk from representing Dion because of a conflict of interest. The circuit court denied the motion and Dion appeals.

DISCUSSION

A. Circuit Court's Acceptance of Dion's Waiver of Conflict-Free Representation

¶ 10 Dion contends that the trial court erroneously exercised its discretion by accepting his conflict of interest waiver, thus allowing Attorney Berk to remain as his counsel. We review a trial court's disqualification decision because of conflict of interest for erroneous exercise of discretion. See State v. Miller, 160 Wis.2d 646, 654, 467 N.W.2d 118 (1991); see also Wheat v. United States, 486 U.S. 153, 163, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (holding that trial courts have wide latitude when deciding whether to reject a waiver of conflict-free representation when an actual or potential conflict exists). We will not hold that the trial court erroneously exercised its discretion if the record demonstrates that the trial court in fact exercised discretion and there is a reasonable basis for its conclusion. State v. Tkacz, 2002 WI App 281, ¶ 8, 258 Wis.2d 611, 654 N.W.2d 37.

¶ 11 Dion refers to case law in which a trial court declined to accept a defendant's waiver of conflict-free representation. Wheat, 486 U.S. at 162-63, 108 S.Ct. 1692; Miller, 160 Wis.2d at 649, 467 N.W.2d 118; State v. Kaye, 106 Wis.2d 1, 14, 315 N.W.2d 337 (1982). Dion maintains that the trial court's decision to accept his waiver, despite the potential for a serious conflict of interest, was an erroneous exercise of discretion.

¶ 12 The State correctly asserts that the case law Dion cites does not hold that a trial court must refuse to allow counsel to represent defendants in the same proceeding when an actual or serious potential for a conflict exists. The central issue in Kaye was whether the defendant had proven ineffective assistance based on his counsel's representation of a co-defendant at sentencing. Kaye, 106 Wis.2d at 6, 315 N.W.2d 337. We held that Kaye had not proven ineffective assistance of counsel based on this conflict of interest, but we recognized the difficulty of establishing such conflicts when the defendant has not made an objection at trial. Id. at 13, 315 N.W.2d 337. Therefore, we instructed trial courts to engage in a colloquy with defendants to ensure that they understand the possibility of a conflict when the same attorney or law firm represents more than one defendant in the same case. Id. at 14, 315 N.W.2d 337. If, following the colloquy, defendants choose to waive the right to separate counsel, the trial court should respect their mutual decision. Id. at 16, 315 N.W.2d 337. In Wheat, the Supreme Court explored a trial court's discretion in this area when deciding whether a court may override a defendant's waiver of the right to conflict-free representation when to do so might interfere with the defendant's Sixth Amendment right to choose one's counsel. Wheat, 486 U.S. at 158, 108 S.Ct. 1692. The Court held that when a trial court finds an actual or potential conflict of interest, the court may reject the defendant's waiver and require that separate counsel represent the defendant. Id. at 162-63, 108...