State v Lewis
| Decision Date | 25 April 2001 |
| Docket Number | 00-0710 |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Melvin S. Lewis, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Racine County: EMILY S. MUELLER, Judge. Affirmed.
Before Nettesheim, Anderson and Snyder, JJ.
¶1.
Melvin S. Lewis appeals from a judgment of conviction and an order denying his motion for postconviction relief. We affirm.
¶2. In January 1998, Victoria Parham moved into the upper apartment unit at 1004 Villa Street, Racine, Wisconsin. Parham is Lewis's girlfriend and they have young children together. On April 1, 1998, police officers conducted a search of 1004Villa Street. Three individuals were at the apartment during the search-Markeena Cole, Parham's brother, Francisco Rascon, and his friend, Anthony McClain. Neither Parham nor Lewis was present during the search. The officers recovered and confiscated twenty-nine corner cuts of crack cocaine estimated by police to have a value of $400 and a baggie containing 1.3 grams of marijuana. They also recovered fifty to sixty baggies with the corners cut out, a smoking pipe, a gun box, a 9-millimeter handgun, ammunition, brass knuckles and a police scanner. The police also seized two electronic pagers, one of which was worn by McClain. In addition, the police recovered Lewis's photo identification card from beneath the kitchen sink, as well as a Wisconsin Electric bill for the apartment in Lewis's name.
¶3. On April 16, 1998, the police executed a second search of the apartment at 1004 Villa Street. This time, Parham, her brother, ArmandoBarrios, and some small children were present. Again, Lewis was not at the apartment when the search was conducted. This time the officers recovered and confiscated fifteen knotted baggies containing a substance believed to be marijuana, eleven corner cuts of crack cocaine weighing a total of 2.6 grams, and baggies with the corners cut out. The police also seized an electronic pager, a portable rifle stock for a semi-automatic rifle, a rifle cleaning rod, a large metal bayonet knife, a sawed-off shotgun, a loaded six-shot .38 caliber Colt revolver and several types of ammunition. The police recovered a Norinco SKS .762 semi-automatic rifle and some additional ammunition from under a bedroom mattress. The police also found gas and electric bills for the residence in the name of Lewis, and a rental agreement for the apartment in the name of Parham that had been mailed to a "Marielle Lewis" of 1004 Villa Street. They found items of clothing belonging to Lewis in a closet and in drawers.
¶4. On May 22, 1998, the State filed a six-count criminal complaint charging Lewis with one count of possession of cocaine with intent to deliver, as a party to the crime; one count of possession of THC with intent to deliver, as a party to the crime; two counts of maintaining a drug trafficking place; and two counts of misdemeanor bail jumping. The case proceeded to trial and, following a three-day trial, the jury convicted Lewis of all charges. He was sentenced to a total of eleven years in prison with consecutive probation.1
¶5. Lewis filed a motion for postconviction relief seeking a new trial. He argued that the trial court improperly impaneled an anonymous jury, and that his conviction for two counts of maintaining a drug trafficking place violated his right to be free from double jeopardy and was multiplicitous. He further argued that he had been denied effective assistance of counsel because his trial counsel failed to object to the admission of the numerous weapons and ammunition that were admitted at trial and failed to request a limiting instruction with respect to the same evidence. Lewis also asked the trial court to order a new trial in the interests of justice.2 Following a Machner3 hearing, the trial court denied the motions. This appeal followed.
¶6. We first address Lewis's claim that the State failed to establish the requisite nexus between the weapons evidence and the elements of the crimes charged, such that this evidence was inadmissible and his trial counsel was ineffective for failing to object to the introduction of this evidence at trial.
¶7. To establish a claim of ineffective assistance, an appellant must show that counsel's performance was deficient and that it prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, an appellant must show that his or her counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. "Review of counsel's performance gives great deference to the attorney and every effort is made to avoid determinations of ineffectiveness based on hindsight." State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). The case is reviewed from counsel's perspective at the time of trial, and the burden is placed upon the appellant to overcome a strong presumption that counsel acted reasonably within professional norms. Id. The appropriate measure of attorney performance is reasonableness, considering all the circumstances. State v. Brooks, 124 Wis. 2d 349, 352, 369 N.W.2d 183 (Ct. App. 1985).
¶8. Even if deficient performance is found, a judgment will not be reversed unless the appellant proves that the deficiency prejudiced his or her defense. Johnson, 153 Wis. 2d at 127. This requires showing that counsel's errors were so serious as to deprive the appellant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687. Id. at 694.
¶9. The question of whether there has been ineffective assistance of counsel is a mixed question of law and fact. State ex rel. Flores v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362 (1994). The trial court is the ultimate arbiter of witness credibility. State v. Marty, 137 Wis. 2d 352, 359, 404 N.W.2d 120 (Ct. App. 1987). "An appellate court will not overturn a trial court's findings of fact concerning the circumstances of the case and counsel's conduct and strategy unless the findings are clearly erroneous." State v. Knight, 168 Wis. 2d 509, 514 n.2, 484 N.W.2d 540 (1992). However, the final determinations of whether counsel's performance was deficient and prejudicial are questions of law, which this court decides without deference to the trial court. Id.
¶10. At trial, weapons and ammunition that had been gathered in the two separate searches of 1004 Villa Street were admitted without objection from the defense.4 The weapons evidence was not left in the presence of the jury throughout the trial, but State did refer to the guns and the ammunition in both its opening and closing statements.
¶11. Lewis correctly asserts that under Wisconsin law, the mere existence of guns or ammunition in a home is not routinely admissible in a drug prosecution. See, e.g., Thompson v. State, 83 Wis. 2d 134, 146, 265 N.W.2d 467 (1978). The State must demonstrate a specific connection or "nexus" between such evidence and the defendant's alleged criminal acts. See State v. Wedgeworth, 100 Wis. 2d 514, 531, 302 N.W.2d 810 (1981); State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d 94 (1977). InSpraggin, the court held inadmissible evidence of the presence of stolen property and weapons in the residence of the defendant in a prosecution for aiding and abetting the delivery of heroin, and explained the need for such a nexus as follows:
[The] [e]vidence of the weapons and stolen goods here is not an individual manifestation of the crime charged; this evidence does not show a series of links in the specific chain which prove the guilt of the offense charged. This evidence indicates that the defendant's home was a den of iniquity and that she had a propensity and disposition toward criminal activity. The evidence was designed to convince the jury that the defendant's possession of weapons and stolen goods was indicative of her guilt of the act charged in this case-intentionally aiding and abetting in the delivery of heroin. No specific connection was shown between this evidence and the defendant's alleged criminal acts. Weapons and stolen goods may constitute the protection and currency necessary in the realm of heroin trafficking, but the State did not demonstrate in any manner that this particular evidence was so employed. The inference of such use must be supported by more than the mere introduction of these exhibits into evidence and the broad assertion that guns and stolen goods are commonly used by those in the heroin trade.
¶12. Here, the State contends that the evidence of multiple guns and ammunition on the premises, including a shotgun kept under a mattress, was relevant to the element of "maintaining" a drug trafficking place in violation of Wis. Stat. §961.42(1) (1999-2000).5 The State elicited the following testimony from police investigators in this regard. The prosecutor asked Investigator Shortess if he had an opinion as to whether 1004 Villa Street was a drug house based on the items he inventoried from the searches. Shortess answered affirmatively, citing the packaging materials, the amount of controlled substances and the cash found on site. The State then asked, "Now, Investigator Shortess, do you associate the presence of weapons with drug trafficking at all?" Shortess stated: ...
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