State v. Harris, No. 2006AP2506 (Wis. App. 6/12/2007), 2006AP2506.
| Decision Date | 12 June 2007 |
| Docket Number | No. 2006AP2506.,2006AP2506. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Dirk Edward Harris, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from orders of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J., Curley and Kessler, JJ.
Dirk E. Harris appeals from the dismissal of his WIS. STAT. § 974.06 (2005-06)1 postconviction motion and from an order denying his motion for reconsideration. We conclude the trial court correctly found that Harris failed to allege facts sufficient to entitle him to relief, failed to show that conduct by his trial counsel was ineffective, and if trial counsel's performance was arguably deficient, failed to show Harris was prejudiced by this performance; therefore, we affirm.
¶ 2 Harris previously appealed his judgment and conviction, see State v. Harris, 189 Wis. 2d 162, 525 N.W.2d 334 (Ct. App. 1994), ("Harris I") which was affirmed by the Wisconsin Supreme Court, see State v. Harris, 199 Wis. 2d 227, 544 N.W.2d 545 (1996). Accordingly, we will set forth only those facts necessary to address this appeal.
¶ 3 In the early morning of December 4, 1988, the body of Dennis Owens was discovered on a City of Milwaukee street. Owens's death was caused by multiple gunshot wounds to the chest and head. His wallet, money and credit cards, which witnesses at a nearby tavern noted that he had had with him earlier in the evening, were missing.
¶ 4 Later that same day, Harris purchased jewelry using one of Owens's credit cards. Also that same day, Harris drove Owens's car and informed a friend that he was leaving Wisconsin because he was in trouble. The next day, Harris asked his mother for money to leave town and showed her Owens's credit cards and identification. Owens's identification cards and the license plates from his car were later recovered by police in Harris's mother's trash, where she had told police she had found them.
¶ 5 At trial, Harris's friend, James Malone, testified that he had been out drinking with Harris the evening of Owens's death, that in the middle of the evening out, Harris and Malone had driven to Harris's house and Harris had retrieved a gun and ammunition, telling Malone "[L]et's go down to the fag bars and roll a queer." The pair then drove to an area near where Owens's body was eventually found. Malone testified that he stayed in the car and slept and that he was later awoken by Harris who told him that he "just shot a nigger." Malone also testified to Harris's additional shots into Owen and to Harris's rifling through Owens's pockets.
¶ 6 Harris left Milwaukee and was eventually apprehended in Amarillo, Texas. While in custody there, he confessed. After a suppression hearing was conducted by the trial court, the confession was found to be inadmissible because the Milwaukee detectives' actions violated the requirements of Miranda v. Arizona, 384 U.S. 436 (1966), and Harris's right to counsel. The trial court also found that Harris had given the confession voluntarily, making the confession admissible if, but only if, Harris testified.
¶ 7 On the first day of trial, a Milwaukee Sentinel newspaper headline read, "`Trial in Death of Worker at TV Station to Begin' ... `Judge's ruling limits use of confession.'" A copy of that newspaper was in the jury room and a number of prospective jurors admitted to either reading the headline and/or a portion of the article. After voir dire of the jurors, many of whom stated that they had seen the headline, and one who stated that she had read a portion of the accompanying article, the jury was empanelled. It included jurors who had seen the article or headline.
¶ 8 The defense's theory at trial was that Harris had not committed the murder; rather, it was committed by a friend of Harris's who had been identified as the person driving Owens's car shortly before Owens's body was found. This theory was supported by evidence from the State's crime lab witnesses. Harris never testified at trial and, accordingly, his confession was never introduced.
¶ 9 The jury returned a verdict of guilty to first-degree intentional homicide. Harris, through his original counsel, filed a postconviction motion which was denied. Harris then appealed, again through his original trial counsel. The appellate court affirmed the jury verdict. Harris then petitioned the supreme court, which took his case and affirmed.
¶ 10 In August 2006, Harris filed the present WIS. STAT. § 974.06 motion, alleging ineffective assistance of trial counsel for counsel's failure to: (1) file a motion for a speedy trial; (2) put on a reasonable defense under the circumstances where the jury was aware of the existence of Harris's confession, even though suppressed; (3) inform Harris that he, and not counsel, had the right to accept or reject a plea offer; (4) object to allegedly improper remarks made by the State during its opening statement and closing arguments; and (5) request that the court poll the jury. Harris also alleges ineffectiveness of postconviction/appellate counsel when counsel failed to appeal denial of change of venue and the court allowing improper jurors on panel. Harris also contends that the trial court erred by: (1) failing to grant the motion for change of venue; (2) failing to strike for cause prospective jurors who, during voir dire, expressed a prejudice against defendants who refused to testify at trial; and (3) allowing a juror on the panel who did not understand the English language.
¶ 11 The trial court denied the motion. Harris filed a motion for reconsideration which the trial court also denied, on the merits. Harris appealed.
¶ 12 Ordinarily, all grounds for relief under WIS. STAT. § 974.06 () must be raised in the original, supplemental or amended postconviction motion or direct appeal. State v. Escalona-Naranjo, 185 Wis. 2d 168, 181, 517 N.W.2d 157 (1994). Issues not raised in the first such motion are waived, "unless the court ascertains that a `sufficient reason' exists" for the failure to raise the issue. Id. at 181-82 (emphasis in original). "[W]here a defendant is represented by the same counsel both at trial and on appeal, the inability of the defendant's trial counsel to assert his own ineffectiveness constitutes a `sufficient reason' under sec. 974.06(4), Stats., for not asserting the matter in the original sec. 974.06 motion." State v. Robinson, 177 Wis. 2d 46, 53, 501 N.W.2d 831 (Ct. App. 1993). This standard was affirmed post-release of the Escalona-Naranjo decision by State v. Hensley, 221 Wis. 2d 473, 474, 477, 585 N.W.2d 683 (Ct. App. 1998).
¶ 13 In order to prove an ineffective assistance claim, the defendant must satisfy a two-part test: the defendant must prove both that counsel's performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985) (); see State v. Johnson, 133 Wis. 2d 207, 222-23, 395 N.W.2d 176 (1986) (); see also State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996) ().
¶ 14 Performance is deficient if it falls outside the range of professionally competent representation, Pitsch, 124 Wis. 2d at 636-37, i.e., if the attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990) (quoting Strickland, 466 U.S. at 687). We measure performance by the objective standard of what a reasonably prudent attorney would do in similar circumstances, see id.; Strickland, 466 U.S. at 688, and we indulge in a strong presumption that counsel acted reasonably within professional norms, Pitsch, 124 Wis. 2d at 637. We review the attorney's performance with great deference and "the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms." Johnson, 153 Wis. 2d at 127. Generally, when a defendant accepts counsel, the defendant delegates to counsel the tactical decisions an attorney must make during a trial. State v. Brunette, 220 Wis. 2d 431, 443, 583 N.W.2d 174 (Ct. App. 1998) (citation omitted). "Review of the performance prong may be abandoned `[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice....'" State v. Moats, 156 Wis. 2d 74, 101, 457 N.W.2d 299 (1990) (citing Strickland, 466 U.S. at 697).
¶ 15 To prove prejudice, it is not enough for a defendant to merely show that the alleged deficient performance had some conceivable effect on the outcome. State v. Erickson, 227 Wis. 2d 758, 773, 596 N.W.2d 749 (1999). Rather, the defendant must show that, but for counsel's error, there is a reasonable probability that the result of the trial would have been different. Id.
¶ 16 A claim of ineffective assistance of counsel presents a mixed question of fact and law. State v. O'Brien, 223 Wis. 2d 303, 324-25, 588 N.W.2d 8 (1999). Upon appellate review, we will affirm the trial court's findings of historical fact concerning counsel's performance unless those findings are clearly erroneous. Id. However, the ultimate question of ineffective assistance is one of law, subject to independent review. Id. at 325.
¶ 17 Harris challenges, as an erroneous exercise of its discretion, the following decisions and actions which the trial court undertook at trial: (1) failing to grant the motion for change of venue; (2) failing to...
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