State v. Johnson, 87-1471-CR

CourtUnited States State Supreme Court of Wisconsin
Citation153 Wis.2d 121,449 N.W.2d 845
Docket NumberNo. 87-1471-CR,87-1471-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward JOHNSON, Defendant-Appellant.
Decision Date18 January 1990

Page 845

449 N.W.2d 845
153 Wis.2d 121
STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
Edward JOHNSON, Defendant-Appellant.
No. 87-1471-CR.
Supreme Court of Wisconsin.
Argued Nov. 1, 1989.
Decided Jan. 18, 1990.

Page 846

[153 Wis.2d 123] Paul Lundsten, Asst. Atty. Gen., with whom on the brief was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.

Charles Bennett Vetzner, Asst. State Public Defender, for defendant-appellant.


This is a reconsideration of a decision in which we reversed an unpublished court of appeals decision and reinstated the judgment of conviction and order by the circuit court for Dane county, the Honorable Michael B. Torphy, Jr.

In an unpublished order of this court dated June 20, 1989, this court stated that the defendant had waived his [153 Wis.2d 124] right to any review of the ineffective assistance of counsel issue but that the court in its discretion would allow the issue to be briefed and decided. In our first review, this court did not decide the issue of ineffective assistance of counsel but did reverse the court of appeals on the issue of evidence having been introduced that the victim of the defendant's attack had not commenced civil litigation. 1 The respondent does not have to file a cross-petition. Section 809.62(7), Stats. Issues, however, must be asserted in his brief to this court. This court will not consider the issues respondent wishes to have considered unless they are asserted in the brief and fully discussed in that brief to this court. There must be a full discussion of all issues asserted or dealt with in the court of appeals on which he relies. State v. Alles, 106 Wis.2d 368, 390-91, 316 N.W.2d 378 (1982).

In his initial appeal before the court of appeals, Johnson raised two issues. 2 The first issue asked whether evidence that the victim was not intending to sue Johnson for civil damages as a result of the assault, which was offered to bolster her credibility, was erroneously admitted and therefore warranted the court of appeals exercise of its discretion to order a new trial in the interests of justice. The second issue raised was ineffective assistance of counsel.

The court of appeals answered the first issue in the affirmative, reversed the conviction and remanded the case thus avoiding the ineffective assistance of counsel issue. The state then petitioned this court for review of the first issue and we accepted. We reversed the court of appeals. Although we agreed with that court that it was [153 Wis.2d 125] error to admit the nonlitigation evidence, we found the error to be harmless. The nonlitigation evidence was offered by the state to bolster the testimony of the victim that she had not started a civil action

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before the criminal trial. State v. Johnson, 149 Wis.2d 418, 428, 432, 439 N.W.2d 122 (1989). In our decision, we noted that the court of appeals had not addressed ineffective assistance of counsel. Id. at 427, 439 N.W.2d 122.

Subsequent to our initial review, Johnson filed a timely motion to this court pursuant to sec. 809.64, Stats., for reconsideration of the decision on the grounds the defendant was denied effective assistance of counsel guaranteed him by the sixth amendment. 3 Johnson concluded his initial brief for review in this court by stating: "This court should affirm the Court of Appeals' order for a new trial. If this court should reverse that order, the case should then be remanded to the Court of Appeals to consider the issues which have not yet been decided." This is not sufficient. Our original order dated August 23, 1988, 145 Wis.2d 916, 430 N.W.2d 351, expressly stated:

IT IS FURTHER ORDERED that in any brief filed in this court the parties shall not incorporate by reference any portion of their court of appeals' brief or petition for review or response; instead, any material[153 Wis.2d 126] in these documents upon which there is reliance should be restated in the brief filed in this court;

Procedurally, this court had two alternatives after deciding the issue for which the court accepted the petition for review brought by the state which reversed the court of appeals. We could have returned the case to the court of appeals for a decision on the issue of ineffective assistance of counsel, or this court could have decided the issue. We chose the latter course of action and, under the procedural circumstances of this case, granted the defendant's motion.

The defendant asserts three specific instances in which he alleges trial counsel acted ineffectively in presenting his defense. There is no need to consider in detail whether one or all three points of counsel's performance were deficient since we hold there was no prejudice. We therefore affirm the mandate of our first decision in Johnson, 149 Wis.2d 418, 439 N.W.2d 122, which reversed the decision of the court of appeals and remanded the case with directions to reinstate the conviction.

"[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). The benchmark for judging whether counsel has acted ineffectively is stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That requires the ultimate determination of "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064. The overall purpose of this inquiry is to ensure that the criminal defendant receives a fair trial. A fair trial is defined as "one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Id. at 685, 104 S.Ct. at 2063.

[153 Wis.2d 127] The Strickland Court set forth a two-part test for determining whether counsel's actions constitute ineffective assistance. The first test requires the defendant to show that his counsel's performance was deficient. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. Review of counsel's performance gives great deference to the attorney and every effort is made to avoid determinations of ineffectiveness based on hindsight. Rather, the case is reviewed from counsel's

Page 848

perspective at the time of trial, and the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms. 4 Id.

Even if deficient performance is found, judgment will not be reversed unless the defendant proves that the deficiency prejudiced his defense. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

The standard of review of the ineffective assistance of counsel components of performance and prejudice is a mixed question of law and fact. Id. at 698, 104 S.Ct. at 2070. Thus, the trial court's findings of fact, "the underlying findings of what happened," will not be overturned unless clearly erroneous. State v. Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711 (1985) (citing sec. 805.17(2), Stats.1983-84).[153 Wis.2d 128] "84). The ultimate determination of whether counsel's performance was deficient and prejudicial to the defense are questions of law which this court reviews independently. Id.

When reviewing a claim of ineffective assistance of counsel, the Strickland Court states that courts may reverse the order of the two tests or avoid the deficient performance analysis altogether if the defendant has failed to show prejudice:

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining...

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