State v. Hawthorne
| Decision Date | 12 May 2015 |
| Docket Number | 2014AP1567.,Nos. 2014AP1566,s. 2014AP1566 |
| Citation | 364 Wis.2d 407,866 N.W.2d 405 (Table) |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Royce L. HAWTHORNE, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
Royce Hawthorne, pro se, appeals the orders denying his postconviction motion filed pursuant to Wis. Stat. § 974.06 (2013–14)1 and State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 681, 556 N.W.2d 136 (Ct.App.1996). Hawthorne raises a laundry list of issues all related to the alleged ineffective assistance of his postconviction/appellate counsel.2 For the reasons which follow, we conclude that all of the issues Hawthorne raises are without merit, and affirm.
¶ 2 In April 2011, the State filed a criminal complaint charging Hawthorne with one count of first-degree recklessly endangering safety by use of a dangerous weapon as an act of domestic abuse, and one count of being a felon in possession of a firearm. According to the complaint, Hawthorne shot his brother, Corneil Hawthorne, at the home they shared with their mother, Grace Hawthorne.
¶ 3 At the preliminary hearing, Grace appeared and testified but Corneil did not. Subsequently, an investigator from the district attorney's office learned about three telephone calls made from the jail where Hawthorne was housed to a third Hawthorne brother and two women, including Hawthorne's girlfriend. During those calls, the man calling from the jail identified himself as “Royce” and asked the listeners to convince his mother and brother not to show up for court. The investigator played “snippets” of the calls for Grace, who identified Hawthorne as the speaker. The State then filed a second complaint, charging Hawthorne with two counts of witness intimidation based upon the phone calls. Both cases were joined together for trial.
¶ 4 On the morning of trial, both Grace and Corneil failed to appear despite being personally served with subpoenas. The State sent investigators out to look for them, but when the investigators failed to locate them, the State sought to have statements Grace and Corneil made to police admitted pursuant to the forfeiture-by-wrongdoing doctrine. A hearing was held on the State's motion.
¶ 5 At the hearing, Anna Linden, an investigator for the district attorney's office, testified that she listened to recordings of three telephone calls made from the jail. She was able to verify that each call corresponded to Hawthorne's housing assignment in the jail. In the recordings, she heard a male inmate “ordering” another individual “to go speak to the witness and the victim and tell 'em not to show up to court.” Linden testified that she played “snippets” of the recordings to Grace, who identified the male voice as Hawthorne's.
¶ 6 Milwaukee Police Detective Michael Washington also testified at the forfeiture-by-wrongdoing hearing. He testified that he had briefly spoken to Hawthorne on two occasions while investigating the shooting. He testified that he was familiar with Hawthorne's voice, and recognized the voice in the telephone recordings as Hawthorne's.
¶ 7 Hawthorne's trial counsel objected to admission of the recordings on two grounds. First, he argued that the State failed to “authenticate” the recordings, in that counsel contended that “there's no evidence to show that it was [Hawthorne] on those phone calls”; counsel also contested the manner in which Detective Washington was asked to authenticate Hawthorne's voice. Second, trial counsel argued that the State failed to show “cause,” that is, trial counsel argued that “there was insufficient evidence that the calls led to the witnesses' non-appearance at trial.”
¶ 8 After listening to the testimony and the three jailhouse recordings, the trial court granted the State's motion and permitted into evidence at trial the statements Grace and Corneil made to police. In doing so, the trial court found:
The case then proceeded to trial.
¶ 9 At trial, Milwaukee Police Detective Joseph McLin testified that he was dispatched to the hospital in April 2011, to meet Corneil, who had been shot in the leg. Detective McLin testified that Corneil told him that Hawthorne had shot him during an argument.
¶ 10 Detective McLin also testified that he met with Grace, who told him Corneil and Hawthorne had been arguing earlier that day and that she saw Hawthorne leave Corneil's basement bedroom holding a gun. She told Detective McLin that she tried to stop her sons from arguing, but when she was unsuccessful, she left the scene. Grace then heard a loud shot, returned to the scene, and saw Corneil seated on the floor. Grace saw Hawthorne then open the back door, still holding the gun. Hawthorne later told Grace that he had taken Corneil to the hospital for a “graze gunshot wound
,” and Hawthorne apologized to her for shooting his brother.
¶ 11 Investigator Linden testified consistent with her testimony at the forfeiture-by-wrongdoing hearing. She told the jury that she had listened to the telephone calls from jail between a man who identified himself as “Royce” and someone else, in which the man told the listener to “make sure mom and DoNo don't come to court.” Linden also testified that she had played “snippets” of the recordings to Grace who identified the voice in all three recordings as Hawthorne's.
¶ 12 The jury found Hawthorne guilty of all counts. He was sentenced to two concurrent terms of three years of initial confinement and three years of extended supervision for the shooting and firearm possession, consecutive to two concurrent terms of two years of initial confinement and two years of extended supervision for the two counts of witness intimidation.
¶ 13 Through counsel, Hawthorne filed a postconviction motion and a direct appeal pursuant to Wis. Stat. § 809.30, arguing that the trial court erred when it applied the forfeiture-by-wrongdoing doctrine to allow Grace's and Corneil's statements to police officers to be introduced at trial. Hawthorne's postconviction/appellate counsel argued that the witnesses were not legally “unavailable” for confrontation because the State failed to demonstrate good faith and due diligence to compel the witnesses' appearance at trial. The postconviction court denied Hawthorne's motion and we affirmed.
¶ 14 Thereafter, Hawthorne filed a pro se postconviction motion for relief pursuant to Wis. Stat. § 974.06 and Rothering, alleging that his postconviction/appellate counsel was ineffective. The postconviction court addressed Hawthorne's claims that his postconviction counsel was ineffective, and denied the motion based upon those claims; however, the postconviction court declined to address Hawthorne's claims that his appellate counsel was ineffective, concluding that those claims were raised in the wrong forum pursuant to State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992). Hawthorne appeals.
¶ 15 Hawthorne alleges on appeal that the postconviction court erred in denying his Wis. Stat. § 974.06 motion for postconviction relief. He raises a multitude of claims that can be divided into two categories: (1) claims that his postconviction counsel was ineffective for failing to raise claims alleging trial counsel's ineffectiveness; and (2) claims asserting that he received ineffective assistance of appellate counsel. We will address each in turn.
¶ 16 Hawthorne first alleges that his postconviction counsel was ineffective for failing to allege that his trial counsel was ineffective. He contends that trial counsel was ineffective for: (1) conceding Hawthorne's guilt during counsel's opening and closing statements; (2) failing to object to the applicability of the forfeiture-by-wrongdoing exception on confrontation clause grounds; (3) failing to adequately cross-examine a witness; (4) failing to object to the reasonable-doubt jury instruction; (5) failing to object to the amended information; (6) failing to object to joinder; (7) failing to object to the State's selective prosecution; and (8) failing to object to the State's opening and closing statements. We address each in turn.
¶ 17 A motion brought under Wis. Stat. § 974.06 is typically barred when filed after a direct appeal unless the defendant shows a sufficient reason why he did not or could not raise the issues previously. See State v. Escalona–Naranjo, 185 Wis.2d 168, 185, 517 N.W.2d 157 (1994). Ineffective assistance of postconviction counsel may constitute a sufficient reason. See Rothering, 205 Wis.2d at 677–78, 556 N.W.2d 136.
¶ 18 To prevail on a claim that postconviction counsel was ineffective for failing to argue ineffective assistance of trial counsel, a defendant must establish that trial counsel actually was ineffective. State v. Ziebart, 2003 WI App 258, ¶ 15, 268 Wis.2d 468, 673 N.W.2d 369. In other...
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