State v. Jordan

• Decision Date: 25 June 2013
• Docket Number: No. 2011AP1249.,2011AP1249.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Joseph J. JORDAN, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

349 Wis.2d 524

835 N.W.2d 290

2013 WI App 94

STATE of Wisconsin, Plaintiff–Respondent,

v.Joseph J. JORDAN, Defendant–Appellant.

No. 2011AP1249.

Court of Appeals of Wisconsin.

June 25, 2013.

OPINION TEXT STARTS HEREAppeal from orders of the circuit court for Milwaukee County: Jeffrey A. Conen, Judge. Affirmed.

Before CURLEY, P.J., KESSLER and BRENNAN, JJ.¶ 1BRENNAN, J.

Joseph J. Jordan appeals, pro se, from the circuit court's orders denying his Wis. Stat. § 974.06 (2011–12) ¹ postconviction motion for a new trial and his subsequent motion for reconsideration. For the reasons which follow, we affirm.

BACKGROUND

¶ 2 In July 2002, the State filed a complaint, alleging that on June 22, 2002, Jordan shot and killed David A. Robinson. According to the complaint, Jordan was in a vehicle, driven by Michael Blake Jones,² along with Jones's girlfriend, parked behind a gas station to “roll some blunts.” Jones pulled away from the gas station when Jordan spotted a car he mistakenly believed was being driven by a man with whom he had had a disagreement over a gun deal. Robinson, along with three other men, was travelling in the other vehicle. Jordan's vehicle approached the car in which Robinson was riding from the rear, and Jordan reached over Jones and began shooting at the other vehicle. One of the bullets struck Robinson in the head and killed him.

¶ 3 At trial, the State admitted into evidence an eight-page statement, created by one of the detectives that interviewed Jordan, detailing Jordan's confession to police. Jordan signed the statement. In the statement, Jordan states that “he wanted to tell the truth about his involvement in this incident.” He then goes on to detail the events leading up to the shooting, consistent with the complaint, and tells police that as Jones pulled alongside the car in which Robinson was riding, he (Jordan) “reached over [Jones] with the handgun in his right hand and began to fire at the back of the auto near the lower portion of the auto through the open driver's window.”

¶ 4 A jury found Jordan guilty of one count of first-degree reckless homicide, three counts of first-degree recklessly endangering safety, and one count of being a felon in possession of a firearm. He was sentenced to thirty-six years of confinement and twenty years of extended supervision, to be served concurrent to any other sentence.

¶ 5 Jordan, proceeding pro se, filed a motion for postconviction relief, claiming that he was denied his constitutional right to represent himself and that his trial counsel was ineffective. The circuit court denied his motion. Jordan filed a pro se motion for reconsideration, which the circuit court also denied. Jordan, still proceeding pro se, appealed both orders, claiming that: (1) the trial court used the wrong standard when it found that he was not competent to represent himself at the trial; (2) he was denied the effective assistance of counsel because his trial lawyer did not object when the prosecutor allegedly vouched for the police detectives' credibility during closing arguments; and (3) the trial court did not ask about an alleged conflict of interest because Jordan's trial lawyer was paid by the taxpayers without Jordan's knowledge or consent. We affirmed in August 2005.

¶ 6 Several years later, on January 6, 2009, Jordan filed a pro seWis. Stat. § 974.06 motion for postconviction relief, requesting a new trial based on newly discovered evidence, ineffective assistance of trial counsel, and the interest of justice. More specifically, he alleged: (1) to have newly discovered evidence—affidavits from numerous witnesses—which he argued conclusively demonstrated that Quincy Grant committed the crimes of which Jordan was convicted; (2) that his trial counsel was ineffective for failing to interview several witnesses that Jordan claimed were key to his defense; and (3) that, at the very least, the prior alleged errors entitled him to a new trial in the interest of justice.

¶ 7 In addition to his motion for a new trial, Jordan also filed a motion asking the circuit court to appoint him counsel, explaining to the court that “[t]he prosecution of this motion involve [sic] legal situations that are complex and beyond the realm of the abilities [sic]” and that he “is unable to represent himself in this matter[.]” Shortly thereafter, on January 28, Jordan filed a second motion for the appointment of counsel, complaining that the circuit court had not yet acknowledged his first motion. On February 9, Jordan filed a third motion asking the circuit court to stay proceedings until it acknowledged his motion for counsel, stating that he was “in dire need of counsel.” The circuit court issued an order denying Jordan's motions for the appointment of counsel, declining to decide the issue until it knew whether it would need to hold an evidentiary hearing on Jordan's motion. However, soon thereafter, Jordan was able to secure retained counsel, and in March 2009, counsel filed a notice of appearance on Jordan's behalf.

¶ 8 The circuit court held a Machner hearing ³ at which Jordan's new witnesses and Jordan's trial counsel all testified. In October 2009, on the second day of the hearing, Jordan's counsel informed the circuit court that Jordan wished to proceed pro se with standby counsel. After a colloquy with Jordan, the circuit court denied his request, finding that Jordan was not competent to proceed pro se.

¶ 9 In January 2010, while the Machner hearing was still ongoing, Jordan's retained counsel moved to withdraw, citing Jordan's lack of good-faith cooperation with counsel. About the same time, Jordan again moved to proceed pro se. The circuit court granted counsel's motion to withdraw, but denied Jordan's motion to proceed pro se on the same grounds as before. The circuit court then appointed Attorney Richard Hart to represent Jordan.

¶ 10 In December 2010, Jordan filed yet another pro se motion, asking the circuit court to appoint him new counsel or to allow him to proceed pro se. The circuit court again denied his motion and declined to discharge Attorney Hart. Attorney Hart continued to represent Jordan until the circuit court denied Jordan's Wis. Stat. § 974.06 postconviction motion, at which time the circuit court discharged Attorney Hart from further representing of Jordan.

¶ 11 Again proceeding pro se, Jordan filed a motion for reconsideration, arguing that the circuit court should have granted his motion for new trial and raising a new claim of ineffective assistance of postconviction counsel. The circuit court denied Jordan's motion. Jordan, pro se, appeals both orders.

DISCUSSION

¶ 12 As best we can tell, Jordan raises the following issues on appeal: (1) whether the circuit court erred in denying him a new trial based on newly discovered evidence; (2) whether his trial counsel was ineffective; (3) whether the circuit court erred when it denied Jordan's motions to represent himself during the Wis. Stat. § 974.06 proceedings; (4) whether Jordan's court-appointed postconviction counsel was ineffective; and (5) whether Jordan is entitled to a new trial in the interest of justice.⁴ We address each issue in turn.

I. Newly Discovered Evidence.

¶ 13 Jordan first argues that the circuit court erred in denying him a new trial based on newly discovered evidence, specifically the affidavits ⁵ and testimony (taken at the Machner hearing) of Quincy Grant, Jason Hohnstein, Deyon Lee, Lonnie Davis, and Charley Grant. Jordan argues: (1) that Quincy (who invoked his Fifth Amendment right not to testify at the Machner hearing) admitted to committing the crimes of which Jordan was convicted; and (2) that each of the other witnesses now claim that they either have evidence demonstrating that Jordan was not at the crime scene or that Quincy admitted to them that he was the shooter, not Jordan. Jordan contends that the circuit court erred when it found the testimony of each of the witnesses incredible.

¶ 14 “ ‘Motions for a new trial based on newly discovered evidence are entertained with great caution.’ ” State v. Morse, 2005 WI App 223, ¶ 14, 287 Wis.2d 369, 706 N.W.2d 152 (citation omitted). “The decision to grant or deny a motion for a new trial based on newly-discovered evidence is committed to the circuit court's discretion.” State v. Plude, 2008 WI 58, ¶ 31, 310 Wis.2d 28, 750 N.W.2d 42. We review the circuit court's determination for an erroneous exercise of that discretion. State v. McCallum, 208 Wis.2d 463, 473, 561 N.W.2d 707 (1997). A court erroneously exercises its discretion when it applies the wrong legal standard or makes a decision not reasonably supported by the facts of record. See Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶ 22, 339 Wis.2d 493, 811 N.W.2d 756. Thus, we will not overturn a discretionary determination merely because we would have reached a different result. Rather, “ ‘[b]ecause the exercise of discretion is so essential to the [circuit] court's functioning, we generally look for reasons to sustain discretionary decisions.’ ” Burkes v. Hales, 165 Wis.2d 585, 591, 478 N.W.2d 37 (Ct.App.1991) (citation omitted; first set of brackets in Burkes ).

¶ 15 To obtain a new trial based on newly discovered evidence, Jordan must establish, by clear and convincing evidence, that: “ ‘(1) the evidence was discovered after conviction; (2)[he] was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.’ ” See State v. Edmunds, 2008 WI App 33, ¶ 13, 308 Wis.2d 374, 746 N.W.2d 590 (citation omitted). If those four criteria have been established, we then determine “ ‘whether a reasonable probability exists that a different result would be reached in a trial.’ ” Id. (citation omitted). “The reasonable probability factor need not be established by clear and convincing evidence, as it contains its own burden of proof.” Id.

¶ 16 In determining the reasonable probability of a different result on retrial, the circuit...