State v. Dengsavang
| Decision Date | 01 June 2016 |
| Docket Number | No. 2015AP637–CR.,2015AP637–CR. |
| Citation | 370 Wis.2d 787,882 N.W.2d 870 (Table) |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Michael S. DENGSAVANG, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
Michael S. Dengsavang appeals from a judgment of conviction and the circuit court's order denying postconviction relief. First, Dengsavang claims his trial counsel was ineffective for: (1) opening the door to testimony on an excluded crime lab shoe print report; (2) failing to object to Detective Hudson's shoe print testimony on evidentiary grounds of double hearsay and improper expert testimony; and (3) failing to expose exculpatory discrepancies in descriptions of the shooter. Additionally he claims that the trial court erred when it limited the scope of questioning at the Machner1 hearing by limiting testimony to the specific issue of opening the door to the shoe print report, thereby excluding testimony about the alleged discrepancies in descriptions of the shooter.
¶ 2 The State responds that Dengsavang failed to show that his trial counsel's performance was deficient as to the first two claimed ineffective assistance issues: (1) opening the door on the shoe print report; and (2) failing to object to Detective Hudson's shoe print testimony on evidentiary grounds. Further, even if he could show deficient performance, any such deficiency was not prejudicial. As to the third claimed ineffective representation issue—failure to expose the alleged description discrepancies—the State argues that this issue is not properly before us because Dengsavang abandoned this issue before his first appeal, and this court's remand for a Machner hearing neither required a hearing on this issue nor permitted it. Thus the State contends that the trial court did not err in excluding testimony about the alleged discrepancies from the Machner hearing.
¶ 3 We agree with the State and affirm.
¶ 4 After a five-and-a-half-day jury trial,2 Dengsavang was convicted of attempted first-degree intentional homicide, armed robbery with use of force, and burglary, all as a party to a crime.3 The complaint alleged that on December 13, 2009, Dengsavang, along with two accomplices, while armed and masked, robbed the owners of a Wauwatosa restaurant, The Happy Wok, at gunpoint at approximately 10:15 p.m.; burglarized the restaurant owners' nearby apartment at approximately 10:30 p.m., while their minor child was home; and then shot a responding police officer at approximately 10:38 or 10:42 p.m.
¶ 5 The restaurant owners called the police and reported that the robbers had taken their apartment keys and had mentioned knowing their minor son was at home. The police pursued the robbers by following shoe prints with a distinctive Nike pattern in the snow from the restaurant to the owners' apartment nearby and then across North 124th Street, subsequently locating Dengsavang in some trees wearing red and black Nike Air sneakers. The restaurant owners' minor son reported that one of the burglars who entered his home was wearing red shoes. The police found several pairs of gloves, winter masks, and hats in the snow between the apartment and the shooting location, along with the keys to the owners' apartment. Two black gloves and a winter mask were found near the scene of Dengsavang's arrest, and his DNA was found on the items.
¶ 6 Although no eyewitness identified Dengsavang, the State sought to tie him to the crimes primarily by his shoes with what the police described as a distinctive Nike pattern on the bottom. A shoe print pattern, which the police believed matched the pattern on the bottom of Dengsavang's shoes, was found on a restaurant door that one of the robbers had kicked, on the grounds of the restaurant, leading from the apartment building to the patrol car of the responding officer who was shot, and then leading to a tree where Dengsavang was found hiding. Several people told the police they saw Dengsavang running from the apartment complex to the tree where he was found hiding.
¶ 7 At a pretrial hearing on June 2, 2010, five days before trial, the attorney4 for Dengsavang's co-defendant objected to the admission of a crime lab report analyzing digital images of the shoe prints in the snow near the crime scenes as compared to fifteen pairs of Nike shoes. She advised the court that the report had only been given to the defense the day before, which was after the discovery cut-off of May 21, 2010, and just prior to trial. In the report, the crime lab analyst could not state conclusively whether Dengsavang's shoes produced the prints in the snow, but neither could he rule them out. The trial court ruled that due to the late disclosure of the report, the State could only introduce the contents of the shoe print report in its case in chief if defense counsel opened the door first. The court said:
I'm going to order the State can't use it in its case in chief. If for some reason the defense put on somebody or questioned somebody who talks about analyzing shoes or says something to the effect of well, you could have analyzed them, why didn't you analyze them ... those would be the kind of situations I will entertain an opening-the-door type issue....
At his pretrial hearing, Dengsavang was represented by Attorney Daniel Rieck, who was the associate of his trial counsel, Robert D'Arruda.
¶ 8 In the State's case in chief, the prosecutor called Detective Hudson, one of the crime scene investigators, as a witness. She testified that there were numerous shoe prints leading out of the restaurant, which she photographed. She described the shoe prints as having distinct horizontal lines, and in the middle they had a long rectangle with the word “Nike.” She testified that she followed the Nike prints from the restaurant, lost them briefly, and found them again at the restaurant owners' residence, two blocks away. The prosecutor asked Detective Hudson whether the digital images of the shoe prints from the three crime scenes matched the digital image of the bottom of Dengsavang's shoes. She testified that they appeared to match:
There was no objection to the question or answer from trial counsel at trial.
¶ 9 Trial counsel, Robert D'Arruda, then cross examined Detective Hudson and opened the door to the crime lab shoe print analysis report. He asked her to confirm that the State crime lab analyzed photographs of the shoe prints, that it could not conclusively determine that Dengsavang's shoes made the prints, and that Dengsavang's shoes were common, mass-produced Nikes:
¶ 10 Later, on redirect, the prosecutor followed up about the crime lab report, and Detective Hudson acknowledged that the State crime laboratory could not definitively identify Dengsavang's shoes as the only shoes that could have made the shoe prints found at the scene. She also agreed that the analyst could not rule out Dengsavang's shoes as capable of making the prints. Detective Hudson's testimony was the only evidence of the shoe print report presented to the jury. The State never attempted to introduce the report or testimony from the crime lab analyst who prepared it. Dengsavang was convicted on all charges by the jury. He sought postconviction relief, claiming that his trial counsel was ineffective on three grounds: (1) failing to prevent the admission of Detective Hudson's testimony about shoe print evidence as both impermissible lay witness opinion and excluded evidence; (2) failure to effectively argue that Dengsavang could not have been the shooter because he was on the phone at the time of the shooting; and (3) failure to impeach the officer with her description of the suspect, which did not match Dengsavang. After both parties briefed the issues, the trial court denied Dengsavang's motion without a hearing .6
¶ 11 Dengsavang appealed, raising issues solely related to the shoe prints. Notably, he did not raise any issue about the differing descriptions of the shooter. In his appellate brief, Dengsavang stated three issues: (1) whether the trial court erred in allowing the testimony about the crime lab shoe print report; (2) whether trial counsel was ineffective for opening the door to the shoe print report; and (3) whether the trial court erred in denying...
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