State v. Evans

• Decision Date: 29 June 2004
• Docket Number: No. 02-1869-CR.,02-1869-CR.
• Citation: 2004 WI 84,273 Wis.2d 192,682 N.W.2d 784
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Cross-Petitioner, v. IRAN D. EVANS, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

273 Wis.2d 192

2004 WI 84

682 N.W.2d 784

STATE of Wisconsin, Plaintiff-Respondent-Cross-Petitioner, v. IRAN D. EVANS, Defendant-Appellant-Petitioner.

No. 02-1869-CR.

Supreme Court of Wisconsin.

Oral argument April 7, 2004.

Decided June 29, 2004.

For the defendant-appellant-petitioner there were briefs by Robert R. Henak and Henak Law Office, S.C., Milwaukee, and oral argument by Robert R. Henak.

For the plaintiff-respondent-cross-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

¶ 1. JON P. WILCOX, J.

The State and the defendant, Iran D. Evans (Evans), both appeal from an unpublished court of appeals decision, State v. Evans, No. 02-1869-CR, unpublished slip op. (Wis. Ct. App. July 24, 2003). The court of appeals affirmed in part and reversed in part an order of the Milwaukee County Circuit Court, Victor Manian, Judge, denying Evans's motion for postconviction relief. Evans appeals from the portion of the court of appeals decision that upheld his conviction for first-degree reckless injury and the State cross-appeals from the portion of the decision reversing Evans's conviction for first-degree attempted homicide.

I. ISSUES

¶ 2. Evans raises the following issues in his appeal:

1. Whether exclusion of evidence that Evans was elsewhere at or around the time of the shooting was reversible error and deprived him of his rights to present a defense, due process, and a fair trial?

2. Whether Evans was denied due process by the admission of a confession that he claims was fabricated by the police?

3. Whether quashing Evans's subpoena duces tecum denied him due process and a fair hearing on the issue of whether the confession was fabricated by police?

4. Whether Evans was entitled to postconviction discovery of the victim's medical records, the personnel records of the detective who allegedly fabricated his confession, and prior statements taken by the detective in other cases?

5. Whether the exclusion of testimony from alleged alibi witnesses and evidence that the detective who purportedly fabricated his confession had previously been disciplined for untruthfulness resulted in the real controversy not being tried, thereby justifying reversal in the interest of justice?

6. Whether Evans was denied the effective assistance of trial counsel if this court deems that trial counsel failed to preserve any of the above issues?

¶ 3. The State raises two issues on its cross-appeal:

1. Whether the court of appeals erred in reinstating Evans's direct appeal on a claim of ineffective assistance of appellate counsel four and one-half years after his direct appellate rights had lapsed and after Evans had already filed two previous postconviction motions?

2. Whether the court of appeals erred in concluding that Evans was entitled to an instruction of recklessly endangering safety as a lesser-included offense of attempted first-degree intentional homicide?

If we agree with the State that the court of appeals erred in reinstating Evans's direct appeal rights, it is unnecessary to reach the numerous other issues presented in this case.

¶ 4. We reaffirm our holding in State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992), that a claim of ineffective assistance of appellate counsel must be brought by a petition for writ of habeas corpus. Utilizing Wis. Stat. § (Rule) 809.82(2),¹ a procedural mechanism, as a substitute for a Knight petition for habeas corpus, so as to avoid making a substantive determination that a defendant was denied the effective assistance of appellate counsel constitutes an erroneous exercise of discretion. Therefore, we hold that the court of appeals erroneously exercised its discretion when it reinstated Evans's direct appeal rights by granting his § (Rule) 809.82(2) motion to extend the time for filing his direct appeal because the basis of the motion was a claim of ineffective assistance of appellate counsel. As such, we do not reach the other issues presented in this case. Evans remains free to file a Knight petition with the court of appeals.

II. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 5. On June 26, 1996, a jury found Evans guilty of one count first-degree reckless injury and one count attempted first-degree intentional homicide, arising from an incident where Evans allegedly shot an acquaintance on the street multiple times at close range. The circuit court sentenced Evans to 35 years in prison on the attempted first-degree homicide charge and 10 years in prison on the first-degree reckless injury charge, the sentences to run concurrently. On August 2, 1996, Evans's trial counsel filed a notice of intent to pursue postconviction relief.

¶ 6. On August 27, 1996, Assistant State Public Defender Patricia Flood was appointed to represent Evans for purposes of postconviction proceedings. According to an affidavit later filed by Attorney Flood, after discussing the case with Evans, a disagreement arose concerning the challenges to be raised on appeal. Evans informed Attorney Flood that he wanted her to close his file, as he wished to obtain private counsel to represent him. On February 27, 1997, Attorney Flood successfully sought an extension of time for filing a postconviction motion or notice of appeal. Thereafter, on March 10, 1997, Attorney Flood sent Evans a letter advising him of the consequences of closing his file. The contents of the letter are as follows:

When we spoke, I told you that I was concerned that if I closed your case before you actually hired an attorney, and it turned out that you were unable to hire one, you would be left without representation. I did not want to send you the transcripts directly, because I would need them in the event that your plans to hire an attorney did not work out and I did not want to take the chance that something would happen to the transcripts.

You have made it clear that you want your transcripts and that you want me to close your case now. I am doing so, but advise you again that if you are unsuccessful in obtaining private counsel, you will be on your own because the public defender will not appoint a different attorney to represent you.

Your transcripts and the court of appeals order extending your 809.30 deadline for filing a notice of appeal or post-conviction motion are enclosed.

¶ 7. Attorney Flood did not file a motion to withdraw as counsel for Evans. On May 6, 1997, and June 23, 1997, the court of appeals granted Evans's pro se motions to extend the time for filing a postconviction motion or notice of appeal. The court of appeals noted in its June 23, 1997, order that no further extensions would be granted. Evans did not obtain private counsel, and his direct appeal rights lapsed.

¶ 8. On April 15, 1999, Evans filed a motion for postconviction relief pursuant to Wis. Stat. § 974.06, seeking a new trial. In his motion, Evans alleged that his trial counsel was ineffective and that the State withheld crucial exculpatory information. Evans also alleged that the circuit court erroneously exercised its discretion by: a) failing to submit a lesser-included offense instruction to the jury; b) excluding the testimony of alleged alibi witnesses; and c) admitting Evans's confession, which he alleged was fabricated by the police. By order dated April 19, 1999, the Honorable Dennis P. Moroney denied Evans's motion.

¶ 9. On May 26, 1999, five weeks after the circuit court had already ruled on his previous motion, Evans filed a "supplemental" motion for postconviction relief wherein he again sought a new trial. In his supplemental motion, Evans alleged that the circuit court failed to provide an alibi instruction to the jury. By order dated May 27, 1999, the circuit court denied Evans's "supplemental" motion for postconviction relief on the ground that Evans's previous § 974.06 motion had already been adjudicated over a month earlier and he could have and should have raised the issue in his previous motion. The court's order stated that any further § 974.06 motions would be denied on the basis of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).²

¶ 10. The court of appeals subsequently affirmed the circuit court on all grounds in an unpublished per curiam opinion. State v. Evans, No. 99-1147, unpublished slip op. (Wis. Ct. App. October 3, 2000). The court of appeals held that any deficient performance of Evans's trial counsel was not prejudicial because there was substantial evidence supporting his guilt. Id., ¶ 10. The court of appeals also held that no exculpatory evidence was withheld by the State and that even if such evidence was withheld, there was no violation of Brady v. Maryland, 373 U.S. 83 (1963), because the result of the proceeding would have been the same. Evans, No. 99-1147, unpublished slip op., ¶¶ 11-14. Moreover, the court of appeals held that the circuit court did not err in making certain evidentiary rulings and therefore did not violate Evans's constitutional rights. Id., ¶¶ 16-23. Finally, the court of appeals rejected Evans's claims regarding jury instructions for a lesser-included offense and alibi, noting that a motion for postconviction relief under § 974.06 may raise only constitutional and jurisdictional issues. Id., ¶¶ 24-26. The court of appeals also noted Evans's "supplemental" § 974.06 motion was actually his second § 974.06 motion because the circuit court had already denied his first § 974.06 motion when he filed his "supplemental" motion. Id., ¶ 26. The court explained that the first time Evans raised his alibi instruction claim was in his second § 974.06 motion, and he provided no reason why that claim was not raised in the previous motion. Id. This court denied Evans's petition for review on November 6, 2000.

¶ 11. Over two years later, Evans obtained private counsel and sought to have his direct appeal rights reinstated by filing a motion under § (Rule) 809.82(2)³ to extend the...