State v. Foster, 89-0322-CR

• Decision Date: 26 September 1989
• Docket Number: No. 89-0322-CR,89-0322-CR
• Citation: 448 N.W.2d 298,152 Wis.2d 386
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Reginald FOSTER, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 298

448 N.W.2d 298

152 Wis.2d 386

STATE of Wisconsin, Plaintiff-Respondent, v. Reginald FOSTER, Defendant-Appellant. ^d No. 89-0322-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 1, 1989.

Opinion Released Sept. 26, 1989.

Opinion Filed Sept. 26, 1989.

Donald J. Hanaway, Atty. Gen., James M. Freimuth, Asst. Atty. Gen., on the briefs, for plaintiff-respondent.

Carlson & Huppertz, S.C., Matthew H. Huppertz of counsel, Waukesha, for defendant-appellant.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

Reginald Foster appeals from a judgment convicting him of armed robbery, in violation of sec. 943.32(1)(b) and (2), Stats., ¹ and from the trial court's order denying him post-conviction relief. Foster raises one issue on appeal. He contends that his trial counsel had an actual conflict of interest that rendered the lawyer ineffective, per se, because both the lawyer and a lawyer who briefly represented a potential witness were both employed by the office of the State Public Defender. We affirm the judgment and order because Foster has not demonstrated by clear and convincing evidence that his counsel actively represented actual conflicting interests. See State v. Kaye, 106 Wis.2d 1, 7-9, 315 N.W.2d 337, 339-340 (1982).

I.

The pertinent facts of this case are straight-forward and are not disputed. The armed robbery concerned Foster's confrontation with a sixteen-year-old girl wearing a suede-leather jacket. The jury heard four substantially similar versions.

The victim testified that she had just left a store when Foster approached her on the street, grabbed her by the collar, and demanded that she give him her jacket. She started to comply by undoing the buttons when, according to her testimony, "he reached inside his inside coat pocket and pulled out a little silver object that appeared to me to be a gun." She testified that Foster then "clicked the top part of the hammer, put the gun to my head and quoted, 'Bitch, do you want to die for that jacket?' " The girl removed the jacket and handed it to Foster, who, at her request, checked to see if there were any of her keys in the pocket. While Foster was checking the jacket's pockets, another man, Gerald Herd, approached, and, according to the victim's testimony "pretended to say, 'Give her back her jacket.' " Foster refused, and the two men fled.

A seventeen-year-old girl who was with the victim at the time of the robbery also testified at the trial. She told the jury that she and the victim had been walking down the street when Herd approached her and they started talking. She and Herd became separated from the other girl, whom she saw with Foster: "I turned around and he had her jacket in his hand and he had something up to her head." The seventeen-year-old then turned to Herd:

I said, "He's going to shoot her." And [Herd] started laughing. He said, "I don't know him." I said, "Well, ask him to get the gun away from her head." He said, "Well, he's just trying to scare her."

She described the gun as a black object, noting that "[e]verything looked black because it was dark out." She testified that Herd went over to Foster and told him to return the jacket, but that Foster refused and the two men fled.

A Milwaukee police detective testified that when he questioned Foster after Foster's arrest, Foster told him that he took the jacket after flashing a glove in the victim's face, that Herd had asked Foster to return the jacket, and that Foster had sold the jacket for $65 because he needed the money, which he used for gambling.

Foster testified at the trial that he was with Herd when he, Foster, saw the victim wearing a jacket he thought was his. Foster said he told Herd that he was going to get his jacket back, but that Herd demurred. Foster told the jury that he took the jacket from the victim, but denied having a gun. Foster also testified that he refused Herd's request to return the jacket.

As noted, the jury convicted Foster of armed robbery. The trial court sentenced him to an indeterminate term of incarceration not to exceed nine years.

II.

A.

Foster contends that he is entitled to a new trial because of what he submits was his trial lawyer's conflict of interest. He argues, in essence, that the mere fact that his trial counsel and the lawyers who briefly represented Herd were all assistant state public defenders is enough to gain him a new trial. We disagree. ²

The following is an outline of the facts material to our consideration of Foster's contention.

First, his trial counsel was an assistant state public defender.

Second, Herd was charged with obstructing an officer under sec. 946.41, Stats., for allegedly telling investigating police officers that the man who took the victim's coat was not Foster but another person.

Third, Herd was represented at his initial appearance on the obstructing charge by an assistant state public defender (not Foster's trial counsel). At the post-conviction hearing, the assistant state public defender testified that it is routine practice for the public defender's office to represent multiple defendants charged with the same crime at the initial appearance and that conflicts are resolved later by the appointment of outside counsel. He testified that at the time he represented Herd, he was not aware that there was any potential conflict stemming from that representation, and that he did not learn anything from Herd about Foster and the armed robbery charge. He also testified that he first discussed Herd with Foster's trial counsel after Foster's trial.

Fourth, after his initial appearance, Herd was represented by a different assistant state public defender (also not Foster's trial counsel). Although this second lawyer never met, or talked to, Herd, she sent him a letter informing him of her appointment. Herd never received the letter. The lawyer represented Herd in a pre-trial proceeding before a judicial court commissioner even though Herd was not present. Removed as Herd's lawyer prior to the start of Foster's trial, she was replaced by an attorney not employed by the office of the State Public Defender.

Fifth, in connection with the preparation of Foster's case, Foster's trial counsel and an investigator employed by the office of the State Public Defender interviewed Herd. Neither were then aware of Herd's connection with that office, however.

Sixth, both the prosecution and the defense told the trial court that they wanted to call Herd as a witness at Foster's trial.

Seventh, Herd told the trial court that he would rest on his Fifth Amendment rights and would not testify.

Eighth, when Herd was initially questioned by the trial court as to whether he wished to testify in the Foster case, Herd was unaware that he had any lawyer.

Ninth, Herd was called as a defense witness during Foster's trial. He was represented by counsel not employed by the office of the State Public Defender, and refused to testify.

Tenth, the trial court ruled that Herd's statements to the investigator and to Foster's lawyer were not admissible by virtue of the rule against hearsay.

B.

A defendant is entitled to a new trial if he can demonstrate by clear and convincing evidence that the lawyer representing him at trial "actively represented a conflicting interest." Kaye, 106 Wis.2d at 8-9, 315 N.W.2d at 340 (interpreting Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 [1980] ). Specific prejudice need not be shown. Ibid. As the United States Supreme Court has explained:

In Cuyler v. Sullivan, 446 U.S., at 345-350, 100 S.Ct. at 1716-19, the Court held that prejudice [to a defendant] is presumed when [defense] counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties.... Even so, the rule is not quite the per se rule of prejudice that exists [when there is "an actual or constructive denial of the assistance of counsel altogether"]. Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."

Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984) (quoting Cuyler, 446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718. Accord, Burger, 107 S.Ct. at 3120). In evaluating Foster's motion for a new trial, the trial court concluded that although there was a theoretical conflict of interest, there was no "actual conflict" because Foster's trial counsel's performance...