State v. Eckert

• Decision Date: 23 July 1996
• Docket Number: No. 95-1877-CR,95-1877-CR
• Citation: 553 N.W.2d 539,203 Wis.2d 497
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas E. ECKERT, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 539

553 N.W.2d 539

203 Wis.2d 497

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas E. ECKERT, Defendant-Appellant. ^d

No. 95-1877-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 13, 1996.

Opinion Released July 23, 1996.

Opinion Filed July 23, 1996.

For the defendant-appellant the cause was submitted on the briefs of Rick B. Meier of Mandell & Ginsberg of Madison.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, attorney general, and William C. Wolford, assistant attorney general.

Before WEDEMEYER, P.J., SULLIVAN and SCHUDSON, JJ.

WEDEMEYER, Presiding Judge.

Thomas E. Eckert appeals from a judgment of conviction entered after a jury found him guilty of one count of armed robbery, threat of force, as party to a crime, contrary to §§ 943.32(1)(b) and (2), and 939.05, STATS. He also appeals from an order denying his postconviction motion, which alleged ineffective assistance, and newly discovered evidence. Eckert raises three issues on appeal: (1) whether he was denied ineffective assistance of trial counsel; (2) whether the trial court erred in denying his motion requesting a new trial on the basis of newly discovered evidence; and (3) whether the trial court erred in denying his motion to suppress. Because Eckert received effective assistance; because the trial court did not erroneously exercise its discretion in denying Eckert's motion for a new trial based on newly discovered evidence; and because the trial court did not erroneously exercise its discretion in denying Eckert's motion to suppress, we affirm.

I. BACKGROUND

On November 30, 1991, at approximately 7:15 a.m., Jean Rydzik arrived in the parking lot of her place of employment, the Wonder Bread retail store located on West Loomis Road in the City of Greenfield. Before entering the lot, Rydzik noted a truck parked along side the road about two blocks from the store. As she backed into her parking stall, this truck pulled in front of her car. The passenger in the truck got out of the truck. Rydzik observed that he was wearing a ski mask and noticed that he was carrying a gun. He pointed the gun at Rydzik's head and got into her car. He told her he wanted the money from inside the store. The two went into the store and Rydzik gave the man the money from the safe. He instructed her to lie down and count to 500. After Rydzik heard the man leave, she called the police and gave them a description of both the truck and the masked gunman.

City of Greenfield Police Officer David Leon was one of the officers dispatched to the robbery scene. Prior to arriving at the store, however, he observed a vehicle that matched the description of the suspect vehicle. Leon followed the vehicle. Leon observed the vehicle suddenly slow down and the passenger jump out. The passenger fired three times into Leon's squad car. The passenger then fled and eventually broke into the home of an elderly couple, Violet and James Brock. He held the Brocks hostage for approximately seven hours. The man identified himself to the Brocks as Frederick Horenberger. Horenberger eventually told them that he was going to kill himself, went down into the basement and did so.

Acting upon a description of the suspect that had shot at Leon, City of Greenfield Police Officer Craig Busche, apprehended Eckert from behind a garage on East Howard Avenue in Milwaukee. Busche stopped Eckert on the basis of Leon's description of the gunman who had shot at him. When Eckert was ordered from behind the garage by Busche, Eckert hesitated. When Eckert did come forward, he was searched for weapons and evidence and then handcuffed and strapped to the back seat of a squad car. Eckert was taken to the police department and placed in a holding room.

Eckert was charged with one count of first-degree attempted homicide as party to a crime and one count of armed robbery as party to a crime. He pled not guilty. Prior to trial, he moved to suppress the evidence obtained subsequent to his arrest, claiming the police lacked probable cause to arrest him. The trial court denied the motion. The jury acquitted Eckert of the attempted homicide charge, but convicted him of the armed robbery charge. Eckert filed a postconviction motion alleging ineffective assistance of trial counsel and seeking a new trial based on newly discovered evidence. The trial court denied the motion. Eckert now appeals.

II. DISCUSSION

Eckert raises three issues on appeal: (1) whether he received ineffective assistance of trial counsel; (2) whether the trial court erred in denying his motion for a new trial based on newly discovered evidence; and (3) whether the trial court erred in denying his motion to suppress. We address each issue seriatim.

A. Ineffective Assistance.

Eckert claims his trial counsel was ineffective because he: (1) failed to discuss the lesser-included offense of robbery with Eckert and failed to request the lesser-included offense instruction; (2) failed to discuss with Eckert his right to poll the jury and failed to request that the jury be polled; (3) failed to discover two witnesses, who potentially could have offered testimony to support Eckert's testimony; and (4) failed to call a witness who could have corroborated Eckert's testimony. After conducting a Machner ¹ hearing, the trial court ruled that Eckert had received effective assistance of trial counsel.

Eckert has a Sixth Amendment right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). In order to prove that he has not received effective assistance, Eckert must show two things: (1) that his lawyer's performance was deficient; and, if so, (2) that "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. A lawyer's performance is not deficient unless he committed errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Id. In order to show that counsel's performance was prejudicial, Eckert must prove that the errors committed by counsel were so serious that they deprived Eckert of a fair trial, a trial whose result is reliable. See id. In other words, in order to prove prejudice, Eckert must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

In assessing Eckert's claim that his counsel was ineffective, we need not address both the deficient-performance and prejudice components if Eckert cannot make a sufficient showing on one. See id. at 697, 104 S.Ct. at 2069-70. The issues of performance and prejudice present mixed questions of fact and law. State v. Sanchez, 201 Wis.2d 219, 236-37, 548 N.W.2d 69, 76 (1996). Findings of historical fact will not be upset unless they are clearly erroneous, id., and the questions of whether counsel's performance was deficient and, if so, whether it was prejudicial are legal issues we review de novo. Id.

1. Lesser-Included Offense.

Eckert claims his trial counsel provided ineffective assistance by failing to discuss the lesser-included offense option and failing to request that the lesser-included offense instruction on robbery be submitted to the jury. The trial court determined that counsel's decision to decide this issue on his own was not deficient conduct and that even if the lesser-included offense instruction would have been given, that the result of the proceeding would not have been different.

During the Machner hearing, trial counsel testified that he did not specifically discuss with Eckert the lesser-included offense option of robbery. Counsel indicated the reason for this was essentially the theory of defense. The defense theory was that Eckert did not participate in the robbery, and in fact was at a George Webb restaurant at the time the robbery took place. Counsel indicated that it would be inconsistent with this theory to ask for the lesser-included offense instruction because he would be telling the jury that Eckert was not there, but even if he was there, he did not know about the gun.

Eckert argues that State v. Ambuehl, 145 Wis.2d 343, 425 N.W.2d 649 (Ct.App.1988), adopts the ABA Standards for Criminal Justice, which requires defense counsel to confer with the client regarding a lesser-included offense request and that the decision of whether to request a lesser-included instruction should be a decision left to the defendant. ² Ambuehl, 145 Wis.2d at 355, 425 N.W.2d at 654. Our reading of the Ambuehl case does not comport with Eckert's contention. Although Ambuehl does reference and cite this ABA Standard, there is no language within Ambuehl, indicating that this standard was adopted as the law in our state. In fact, in Ambuehl, this court specifically notes that the proposition contained within the commentary to this ABA Standard does not contain any citation to authority. Id. at 355-56, 425 N.W.2d at 654. Moreover, Ambuehl does not involve the situation present in the instant case: whether trial counsel has the obligation to specifically discuss with the defendant possible lesser-included offense instructions. In Ambuehl, the topic of lesser-included offense instructions was admittedly initially discussed with the client, and the client was arguing on appeal that after an additional charge was added, that the subject should have been discussed again. Id. at 356, 425 N.W.2d at 654. We rejected this argument because counsel and client had decided that requesting a lesser-included offense would be inconsistent with the theory of defense. Id. Accordingly, we are not persuaded that Ambuehl controls the issue that Eckert presents.

In addressing the issue that Eckert presents, we note that the right to request a lesser-included offense instruction is neither a constitutional nor a...