State v. Gathings
| Decision Date | 07 May 1996 |
| Docket Number | No. 95-1837-CR,95-1837-CR |
| Citation | 202 Wis.2d 649,551 N.W.2d 63 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Jaruthh M. GATHINGS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.
Jaruthh Gathings appeals from a judgment of conviction for first-degree reckless homicide and from an order denying his motion for postconviction relief. 1 Gathings argues that: (1) the trial court erred by denying his ineffective assistance of counsel motion without a hearing; (2) his statement made to police was taken in violation of his Miranda rights; (3) the trial court erroneously exercised its discretion in admitting photographs of the victim's body; (4) the trial court's imposition of the maximum sentence was excessive; and (5) a reversal is required, pursuant to § 752.35, Stats. We reject Gathings's arguments and affirm.
In November of 1993, Gathings, his brother J.C., and James Jackson went to a local tavern in the City of Milwaukee. There, the Gathingses group met the victim, Frank Marlow, his brother Robert, and two of their cousins. The two groups drank for a period of time, until the defendant wished to visit his sister's home. The Gathingses group traveled in Marlow's car while the other members of the Marlow contingent followed.
The car was stopped by police and Marlow was advised by the detaining officer not to drive the car. The officer was forced to leave when he received a higher priority call and Jackson became the driver. Marlow was upset by this and an argument ensued. Jackson pulled the car into an alley where the occupants left the car and proceeded to fight. While Marlow and J.C. Gathings were fighting, Jaruthh Gathings threw a bottle at Marlow. Unsuccessful in his first attempt to stop the fight, the defendant then picked up a cinder block with two hands and struck Marlow in the head twice with the block. The defendant and his brother fled the scene and were arrested later.
After his arrest, the defendant gave a statement to Detective Kenneth Morrow in which he admitted to hitting Marlow in the head with a cinder block, but claimed the act was done in self-defense and the defense-of-another, his brother J.C. Before the questioning, Gathings was read his Miranda rights. At the Miranda-Goodchild hearing, the trial court concluded that Gathings knowingly and voluntarily waived his Miranda rights and that his confessional statements should be admitted into evidence.
At trial, the State presented the expert testimony of Dr. John Teggatz, a forensic pathologist, and Deputy Chief Medical Examiner for Milwaukee County. Dr. Teggatz testified that the injuries Marlow suffered resulted from the impact of two blows against the head. Dr. Teggatz opined that the first blow from the cinder block rendered Marlow unconscious and the second blow was administered while Marlow's head was in a supported position against the sidewalk.
In addition to the testimony of Dr. Teggatz, the State presented eight "3 X 5" photographs of the victim depicting his location in the alley and the position of his body on the sidewalk. The trial court admitted these photographs into evidence, concluding that they would help the jury to comprehend the nature of the injuries suffered by Marlow.
Following Gathings's conviction for first-degree reckless homicide, the trial court sentenced him to the maximum term of twenty years.
Gathings first argues he should have been granted a new trial because he received ineffective assistance of trial counsel. The trial court denied his new trial motion without a Machner hearing. Gathings argues that the trial court should have held an evidentiary hearing before deciding his motion. We disagree.
Before a trial court must grant an evidentiary hearing on an ineffective assistance of counsel claim, a defendant must raise factual allegations in the motion and affidavits that raise a question of fact for the court. See State v. Washington, 176 Wis.2d 205, 214-15, 500 N.W.2d 331, 335-36 (Ct.App.1993). "A conclusory allegation of ineffective assistance of counsel, unsupported by any factual assertions, is legally insufficient and does not require the trial court to conduct an evidentiary hearing." State v. Toliver, 187 Wis.2d 346, 360, 523 N.W.2d 113, 118 (Ct.App.1994). We review a trial court's denial of a motion for a Machner hearing de novo. State v. Tatum, 191 Wis.2d 547, 551, 530 N.W.2d 407, 408 (Ct.App.1995). We must review the defendant's motion to determine whether it contains factual allegations to support the dual-pronged ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, ---, 80 L.Ed.2d 674 (1984). See State v. Saunders, 196 Wis.2d 45, 51, 538 N.W.2d 546, 549 (Ct.App.1995). The first prong requires that the defendant show that counsel's performance was deficient. State v. Johnson, 126 Wis.2d 8, 10, 374 N.W.2d 637, 638 (Ct.App.1985), rev'd on other grounds, 133 Wis.2d 207, 395 N.W.2d 176 (1986). That is, the defendant must show that counsel's conduct was " 'unreasonable and contrary to the actions of an ordinarily prudent lawyer.' " Id. at 11, 374 N.W.2d at 638 (citation omitted). The second prong requires that the defendant show that the deficient performance was prejudicial. Id. at 10, 374 N.W.2d at 638. To be considered prejudicial, 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"--i.e., "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Further, if the defendant fails to adequately show one prong, we need not address the second. Id. at 697, 104 S.Ct. 2052.
Gathings's motion alleges that his trial counsel should have presented expert testimony to rebut the State's expert witness. Gathings's motions, however, only raise conclusory allegations as to how expert testimony would have supported his defense. Gathings offers no factual evidence to indicate that another forensic pathologist would have reached a different conclusion than that of Dr. Teggatz. Gathings's allegations are no more than speculation, and, without explaining how trial counsel's performance fell below an objective standard of reasonableness, this court cannot find counsel's performance deficient. State v. Teynor, 141 Wis.2d 187, 210-211, 414 N.W.2d 76, 85 (Ct.App.1987).
Gathings also alleges that trial counsel was ineffective because he should have presented evidence of Marlow's "violent tendencies and conduct," and defendant's knowledge of these facts in support of defendant's claim of self-defense. Again, these allegations are conclusory and mere speculation as Gathings set forth no evidence showing that Marlow had violent tendencies and that the defendant knew of them. "More is needed." Saunders, 196 Wis.2d at 52, 538 N.W.2d at 549.
Our de novo review supports the trial court's decision to deny Gathings's ineffective assistance of counsel motion without a Machner hearing.
Gathings next argues that the trial court improperly admitted the photographs of Marlow's body lying in the alley. He claims that the photographs were both prejudicial and cumulative in light of the testimony of Dr. Teggatz, who used charts and three-dimensional models to explain the effect of the cinder block striking the victim's head to support his opinion that the victim's head was struck by a second blow in a supported position.
The trial court has wide discretion in determining whether photographs are to be allowed into evidence. Hayzes v. State, 64 Wis.2d 189, 198, 218 N.W.2d 717, 722 (1974). It is within the purview of the trial court to decide whether to admit photographs because they better illustrate the situation than does the testimony of the witness or to exclude the photographs because they are not substantially necessary to show material facts or conditions, and might arouse sympathy, or divert the minds of the jury to improper considerations. Neuenfeldt v. State, 29 Wis.2d 20, 32-33, 138 N.W.2d 252, 259 (1965), cert. denied, 384 U.S. 1025, 86 S.Ct. 1973, 16 L.Ed.2d 1029 (1966). Unless the record does not reflect the reasons for the trial court's decision or the only purpose for the photographs is to inflame and prejudice the jury, the trial court's discretion will be upheld. Hayzes, 64 Wis.2d at 200, 218 N.W.2d at 723.
Because the defendant chose to pursue a defense of self-defense, whether excessive force was utilized by the defendant necessarily was an issue for the jury to decide. Thus, the nature and severity of the injuries suffered by the victim were paramount in resolving the question of excessive force. The trial court explained the reasoning for admitting the photographs, stating:
This is different from many homicides. This is not a case where we have no dispute as to how the victim died, such as someone who is found with a bullet wound and there is no dispute that that gunshot caused the death of the individual. This is a case whether or not excessive force was used in self-defense.
We have viewed the photographs in question and find that they are probative in determining the issue of whether excessive force was employed by Gathings. While the photographs may be somewhat cumulative, in light of the testimony of Dr. Teggatz, they are nonetheless helpful in aiding the jurors' understanding of his testimony. We find that the reasoning applied by the trial court was proper, and while reasonable minds may differ as to whether the photographs were prejudicial, that is not the...
To continue reading
Request your trial