State v. Fisher
| Decision Date | 12 June 1996 |
| Docket Number | No. 95-1443-CR,95-1443-CR |
| Citation | 203 Wis.2d 270,551 N.W.2d 869 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. John H. FISHER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from judgments and an order of the circuit court for Kenosha County: Bruce E. Schroeder, Judge. Affirmed.
Before BROWN, NETTESHEIM and SNYDER, JJ.
John H. Fisher appeals from judgments convicting him of first-degree recklessly endangering safety with a weapon and felon in possession of a firearm, both as a repeater, 1 and from an order denying his postconviction motion for a new trial. On appeal, Fisher challenges the trial court's refusal to conduct an evidentiary hearing on all postconviction issues and claims that his trial counsel was ineffective and there was insufficient evidence to convict him of first-degree recklessly endangering safety while armed. We decide these issues against Fisher and affirm.
Fisher was charged with endangering the safety of Kenyada Helton under circumstances which showed utter disregard for human life while possessing a dangerous weapon. See § 941.30(1), Stats. Helton testified that in May 1993, after spending approximately two hours at Fisher's home with Fisher and Helton's brother, Cory Burr, Fisher drove them to Racine at approximately midnight. On the way back to Kenosha, they stopped at a restaurant because Fisher was hungry. Fisher ordered food for himself and Helton; Burr used the rest room, returned to the car and fell asleep in the back seat.
Fisher drove Helton home and when he stopped in front of her house inquired where his wallet was. Helton said she did not have it. Fisher then drove away from Helton's home and they argued while he was driving. Helton testified that Fisher stopped the car and said he was going to show how mad he gets when his wallet is missing. Fisher reached between his legs and raised a gun to Helton's head. Helton, who was in the passenger seat, tried to grab the gun and unlock the car door with her other hand. Fisher grabbed her, pulled her toward him and told her she was not going anywhere. Helton then grabbed the gun and they started wrestling on the floor of the car. She testified that Fisher threatened that if she did not release the gun, he was going to shoot. Helton refused to release the gun, and approximately three seconds later the gun discharged. She was wounded in the finger. Helton managed to escape Fisher's grasp and he tried to pull the trigger again. Helton fled the car and ran down an alley where she met Charles Petrin, who took her to his home and called police. Petrin confirmed that Helton was extremely agitated when he encountered her.
Burr testified that Helton was in the front passenger seat and he was asleep in the back seat on the trip from Racine to Kenosha. Burr said that he remembered hearing a gunshot, waking up and asking where Helton was. Fisher told him she was gone. Burr said he never owned a gun and never saw a gun that night.
Fisher testified that when he, Helton and Burr left Racine to return to Kenosha, Burr was awake in the back seat. Fisher testified that he noticed his driver's license was under the armrest of the car and that this was unusual because he keeps the license in his wallet. He then pulled over, checked his pocket and found that his wallet was missing. Fisher admitted that he accused Helton and Burr of stealing his wallet. Helton denied having the wallet, and when she tried to get out of the car, Fisher locked the door. Fisher told her she could not leave until they determined what happened to his wallet. Fisher testified that Burr told him Helton did not know anything about the wallet and that Burr told him he was going to take them home. At that point, Fisher felt something in the lower part of his back and saw that Burr had a gun in his back. Fisher grabbed Burr's arm and they struggled for the gun. During the struggle, Burr pointed the gun toward Helton; she pushed it away. The gun went off, Helton opened the door, and Burr and Helton ran off. Fisher denied possessing a gun that night and said that Burr took the gun with him after the shooting. The jury convicted Fisher.
Fisher claims that his trial counsel was ineffective because he failed to: (1) request instructions on lesser-included offenses; (2) object to the form of the verdict on first-degree recklessly endangering safety and to the instruction on the "while armed" portion of the associated jury instruction; and (3) offer a stipulation on Fisher's prior felony conviction and request a cautionary instruction after the nature of Fisher's prior felony conviction was disclosed. The trial court did not hold an evidentiary hearing on the first two claims of ineffective assistance of counsel.
To establish a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that it prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, ---, 80 L.Ed.2d 674 (1984). To prove deficient performance, a defendant must show that his or her counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id.
Even if deficient performance is found, a judgment will not be reversed unless the defendant proves that the deficiency prejudiced his or her defense. State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). The defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 129, 449 N.W.2d at 848. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. In applying this principle, reviewing courts are instructed to consider the totality of the evidence before the trier of fact. Id. at 129-30, 449 N.W.2d at 848-49. We need not consider whether trial counsel's performance was deficient if we can resolve the ineffectiveness issue on the ground of lack of prejudice. See State v. Moats, 156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990).
The question of whether there has been ineffective assistance of counsel is a mixed question of law and fact. State ex rel. Flores v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994). An appellate court will not overturn a trial court's findings of fact concerning the circumstances of the case and counsel's conduct and strategy unless the findings are clearly erroneous. State v. Knight, 168 Wis.2d 509, 514 n. 2, 484 N.W.2d 540, 541 (1992). However, the final determinations of whether counsel's performance was deficient and prejudiced the defense are questions of law which this court decides without deference to the trial court. Id.
Fisher argues that the trial court erroneously denied him a full evidentiary hearing on his ineffective assistance of counsel claims. A trial court properly exercises its discretion to deny a postconviction motion without a hearing "if the record conclusively demonstrates that the defendant is not entitled to relief." State v. Washington, 176 Wis.2d 205, 215, 500 N.W.2d 331, 336 (Ct.App.1993) (quoted source omitted).
In declining to hold an evidentiary hearing on Fisher's first two ineffective assistance of counsel claims, the trial court essentially moved directly to the prejudice prong of the Strickland analysis and determined as a matter of law that Fisher was not prejudiced by counsel's performance. We review this legal conclusion independently.
Trial counsel is not ineffective if he or she fails to request a lesser-included offense instruction when the defendant would not have been entitled to the instruction in the first instance. See State v. Van Straten, 140 Wis.2d 306, 320, 409 N.W.2d 448, 454-55, cert. denied, 484 U.S. 932, 108 S.Ct. 304, 98 L.Ed.2d 263 (1987); State v. Leach, 124 Wis.2d 648, 675, 370 N.W.2d 240, 254 (1985). In deciding whether to instruct the jury on a lesser-included offense, the circuit court must determine as a matter of law whether the lesser offense is a lesser-included offense and whether the instruction is justified based on the evidence. State v. Carrington, 134 Wis.2d 260, 262 n. 1, 397 N.W.2d 484, 485 (1986). A lesser-included offense instruction is appropriate where there are reasonable grounds in the evidence for acquittal on the original offense and conviction on a lesser offense. State v. Chapman, 175 Wis.2d 231, 241, 499 N.W.2d 222, 226 (Ct.App.1993). In ruling on the propriety of a lesser-included offense instruction, the court must view the evidence in the light most favorable to the defendant and the requested instruction. State v. Foster, 191 Wis.2d 14, 23, 528 N.W.2d 22, 26 (Ct.App.1995).
The State argues that the trial court correctly determined that Fisher was not entitled to an instruction on second-degree recklessly endangering safety because there was no reasonable basis for acquitting him on the greater offense of first-degree recklessly endangering safety. The State also argues that the trial court correctly concluded that Fisher was not entitled to an instruction on endangering safety by use of a dangerous weapon, § 941.20, Stats., because that crime is not a lesser-included offense of first-degree recklessly endangering safety while armed under § 941.30(1), Stats.
The State concedes that second-degree recklessly endangering safety is a lesser-included offense of first-degree recklessly endangering safety. See § 939.66(1), Stats. (an included crime is one which does not require proof of any fact in addition to those facts which must be proved for the crime charged). Both degrees of recklessly endangering safety require reckless endangerment. First-degree recklessly endangering safety requires the additional element of having done so "under circumstances which...
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