State v. Johnson, 02-2793-CR.

• Court: United States State Supreme Court of Wisconsin
• Citation: 2004 WI 94,681 N.W.2d 901,273 Wis.2d 626
• Docket Number: No. 02-2793-CR.,02-2793-CR.
• Parties: STATE OF WISCONSIN, Plaintiff-Respondent, v. Victor K. JOHNSON, Defendant-Appellant-Petitioner.
• Decision Date: 01 July 2004

273 Wis.2d 626
2004 WI 94
681 N.W.2d 901

STATE OF WISCONSIN, Plaintiff-Respondent,
v.
Victor K. JOHNSON, Defendant-Appellant-Petitioner

No. 02-2793-CR.

Supreme Court of Wisconsin.

Oral argument March 10, 2004.

Decided July 1, 2004.

For the defendant-appellant-petitioner there were briefs by James R. Lucius, Greenfield, and oral argument by James R. Lucius.

For the plaintiff-respondent the cause was argued Daniel J. O'Brien, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

273 Wis.2d 629

¶ 1. PATIENCE D. ROGGENSACK, J

Victor K.

273 Wis.2d 630

Johnson petitions for review of an unpublished court of appeals decision that affirmed judgments and an order of the circuit court for Milwaukee County, Jeffrey A. Conen, presiding, convicting Johnson of one count of armed robbery, one count of robbery with threat of force, one count of attempted armed robbery, and three counts of felony bail jumping, and denying Johnson's postconviction motion alleging ineffective assistance of counsel.¹ Johnson claims that the circuit court erroneously exercised its discretion in permitting the State to question him about the truthfulness of another witness, contrary to State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). He also contends that his trial counsel was ineffective for failing to object to the questions

¶ 2. We conclude that the purpose and effect of the prosecutor's cross-examination of Johnson was to impeach Johnson's credibility, not to bolster the credibility of another witness, because both Johnson and the other witness were testifying to their personal observations about the same events. Therefore, the cross-examination of Johnson was permissible. Because we have concluded that the cross-examination was not improper, we also conclude that trial counsel's performance

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was not deficient for failing to object to it. And finally, we conclude that because Johnson did not object to his cross-examination, the issue of whether the circuit court erroneously exercised its discretion in permitting the questioning has not been preserved for appeal; however, we have reviewed the admission of this testimony in our review of Johnson's ineffective assistance of counsel claim. Accordingly, we affirm the order denying Johnson postconviction relief and affirm the judgments of conviction

I. BACKGROUND

¶ 3. On three separate occasions in 2000, Johnson entered a retail establishment, took some items, and left without paying for them. Johnson took several packages of batteries from Kohl's; a number of videotapes from Blockbuster Video; and power tools from Home Depot. In each instance, when store personnel followed Johnson out of the store to confront him about taking merchandise, Johnson threatened them with a knife. The State charged Johnson with one count of armed robbery and one count of felony bail jumping in each of the three cases.

¶ 4. At trial, Evelyn Zahn testified for the State. Zahn was working at Blockbuster Video the day that Johnson stole the videotapes. She testified that she saw Johnson enter the store with an empty canvas bag and go to a table near the front of the store on which previously viewed videotapes were stacked for sale. Zahn said she saw Johnson ripping the cardboard boxes that the tapes were in, and once saw him put a video into his canvas bag. She testified that she found the pieces of nine or ten cardboard slip sleeves strewn about the store. Those pieces contained the bar codes for the videos Johnson took. Zahn said that she noticed when

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Johnson began walking out of the store his canvas bag was now full, and that she asked him what was in it. She testified that he ignored her, and as he left the store he set off the security devices. Zahn said she followed Johnson outside and demanded the return of the tapes. According to Zahn, Johnson put the bag in a car on the passenger side, then walked around the back of the car to the driver's side, stopping to slightly open the trunk. When he reached the driver's side of the car, where she was standing, he was holding a knife that he brandished at her.

¶ 5. When Johnson testified on direct examination about the Blockbuster Video robbery, he acknowledged that he put a number of videos from the resale table into his canvas bag and that he set off the security device when he walked through it. Johnson said that he cut off the bar codes, which he seemed to think were security tags, using a serrated knife. He also testified that he left pieces of the cardboard slip sleeves around the store. On cross-examination the next day, Johnson contradicted his direct testimony, and said that he did not take videotapes from the resale table because those videotapes did not have any street value, and he was stealing videos to re-sell them on the street. The following exchange occurred between the prosecutor and Johnson:

Q And do you agree with Ms. Zahn that there was a table where they have the resale videos that is up near the front where the checkout area is?

A No, ma'am, I do not agree with that.

Q What area did you say you were in?

A I was on [sic] the shelves on the right side of the store.

273 Wis.2d 633

Q Did you go over to that table?

A I don't remember, ma'am.

Q So what you recall of the incident on July 23rd is not crystal, it is just—

A It is crystal, but I would stay away from the table because the tables had three dollar movies and they wouldn't sell so I wouldn't steal them.

Q So when Ms. Zahn says she picked up the remnants from this table and they were movies that were on sale at that table, she is mistaken?

A I don't—I can't say. I can't call no one a liar, but I tell you I had remnants all over the store. As I moved, I picked and choose [sic]. I pierced the cellophane and tossed the cardboard and I stuffed them in my bag. So I left remnants, as you say, all over the store.

¶ 6. Johnson also testified, contrary to Zahn's testimony, about what she said to him as he left the store, setting off the security device.

Q . . . Do you remember Ms. Zahn asking you what was in the bag before you hit the security buzzer?

A That is not true at all.

Q That just didn't happen?

A That just didn't happen.

Q So she is lying about that?

A That is her version, ma'am, I can't call her a liar.

Q She is just not telling the truth, correct?

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A If you want to insist, that didn't happen.

¶ 7. Johnson's counsel did not object to the line of questioning, nor did the circuit court intervene. The jury found Johnson guilty of one count of armed robbery, one count of robbery with threat of force, one count of attempted armed robbery, and three counts of felony bail jumping, and he was sentenced accordingly. Johnson filed a postconviction motion, arguing that the circuit court erroneously exercised its discretion by allowing the prosecutor, on cross-examination, to seek his opinion on the truthfulness of the State's witness, Zahn. Johnson also argued that he was denied effective assistance of counsel because his trial counsel failed to object to what he termed the prosecutor's "improper cross-examination." The circuit court denied Johnson's motion. Johnson appealed, and the court of appeals affirmed. We accepted Johnson's petition for review.

¶ 8. The issue here involves what has been described as conflicting court of appeals decisions regarding the admissibility of testimony that purportedly gives an opinion about the truthfulness of another witness's testimony. Cf. State v. Kuehl, 199 Wis. 2d 143, 545 N.W.2d 840 (Ct. App. 1995); State v. Jackson, 187 Wis. 2d 431, 523 N.W.2d 126 (Ct. App. 1994); Haseltine, 120 Wis. 2d 92. We accepted review in part to clarify the law in this area.

II. DISCUSSION

A. Standard of Review

¶ 9. Whether the circuit court erred in permitting the questions to which Johnson now objects is a discretionary decision that we will not overturn unless the court's discretion was erroneously exercised. See Lease

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Am. Corp. v. Insurance Co. of N. Am., 88 Wis. 2d 395, 402, 276 N.W.2d 767 (1979).

¶ 10. Whether Johnson's trial counsel was ineffective for failing to object to the prosecutor's cross-examination of Johnson and whether Johnson was prejudiced are mixed questions of fact and law. See State v. (Edward) Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990); State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). We will uphold a circuit court's findings of fact unless they are clearly erroneous. Johnson, 153 Wis. 2d at 127; Pitsch, 124 Wis. 2d at 634. However, questions regarding the deficiency of counsel's performance or its prejudicial effect are questions of law that we review de novo. Johnson, 153 Wis. 2d at 128; Pitsch, 124 Wis. 2d at 634.

B. Ineffective Assistance

¶ 11. We follow a two-step approach in reviewing an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 687 (1984); Johnson, 153 Wis. 2d at 127. A defendant must prove both that his or her attorney's performance was deficient and that the deficient performance was prejudicial. Strickland, 466 U.S. at 687; Johnson, 153 Wis. 2d at 127. We will not determine that an attorney's performance was deficient unless the attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Johnson, 153 Wis. 2d at 127 (quoting Strickland, 466 U.S. at 687). Additionally, we review an attorney's performance with deference, and there is a presumption that counsel acted reasonably and within professional norms. Johnson, 153 Wis. 2d at 127. When deficient performance has been shown, it must also be prejudicial in

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order to warrant reversal. Therefore, a defendant must show that, but for his or her attorney's errors, there is a "reasonable probability" the result of the proceeding would have been different. Johnson, 153 Wis. 2d at 129 (citing Strickland, 466 U.S. at...