State v. Lobermeier

• Decision Date: 12 June 2012
• Docket Number: No. 2011AP68–CR.,2011AP68–CR.
• Citation: 343 Wis.2d 456,821 N.W.2d 400,2012 WI App 77
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Joel Joseph LOBERMEIER, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

343 Wis.2d 456

821 N.W.2d 400

2012 WI App 77

STATE of Wisconsin, Plaintiff–Respondent,

v.Joel Joseph LOBERMEIER, Defendant–Appellant.^†

No. 2011AP68–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 8, 2012.

Opinion Filed June 12, 2012.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrea Taylor Cornwall and Kaitlin A. Lamb, assistant state public defenders of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Daniel J. O'Brien, assistant attorney general.

Before CURLEY, P.J., FINE and BRENNAN, JJ.

FINE, J.

[343 Wis.2d 460]¶ 1 Joel Joseph Lobermeier appeals the judgment entered on jury verdicts convicting him of armed robbery, seeWis. Stat. § 943.32(2), aggravated battery to the elderly, seeWis. Stat. § 940.19(6)(a), and taking and driving a car without the owner's consent, seeWis. Stat. § 943.23(2), all as party to a crime, seeWis. Stat. § 939.05. He also appeals the trial court's order denying his motion for postconviction relief. He claims that the trial court erred in: (1) telling the jurors that they could not use their specialized knowledge in deciding the case; (2) concluding that Lobermeier voluntarily decided not to testify at the trial; and (3) deciding that the State's failure to disclose the full extent of a witness's criminal history did not prejudice Lobermeier. We affirm.

I.

¶ 2 The State charged Lobermeier with robbing and beating ninety-six-year-old Marie Heinitz and taking her car without her consent, all as party to a crime. The key to Lobermeier's defense was his argument that Heinitz's identification of him was flawed. Thus, his trial lawyer told the jury in his opening statement that although “someone robbed” Heinitz, “[t]hat person is not Joel Lobermeier.” In support of that theory, Lobermeier's trial lawyer pointed out that Heinitz had difficulty identifying Lobermeier at her videotaped deposition. In his closing argument, Lobermeier's trial lawyer reminded the jury despite the struggle and beating, no physical evidence connected Lobermeier to the crime, and that Heinitz's age made her identification of him not reliable:

[S]he's up to 96, and again even though she has this amazing ability to come to court, to work around the house, the judge to you explained what your role as a juror is, to use that common sense, to use that same common sense that you use in judging everyday events in your own lives.

What that tells you and what you should know is that Ms. Heinitz, at 96, may not have the same ability to process information, relay information that some of us have. And what is [ sic ] should also tell you is that [the date of the crimes] Ms. Heinitz was mistaken about who came and robbed her in her home.

II.

¶ 3 As we will see, two of the things about which Lobermeier now complains (the trial court's instructions to the jurors, and the extent of a witness's criminal history) require that we apply the law that guarantees every defendant a constitutionally adequate defense. To establish constitutionally deficient representation, a defendant must show: (1) deficient representation; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient representation, a defendant must point to specific acts or omissions by the lawyer that are “outside the wide range of professionally competent assistance.” Id., 466 U.S. at 690, 104 S.Ct. 2052. To prove prejudice, a defendant must demonstrate that the lawyer's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. Id., 466 U.S. at 687, 104 S.Ct. 2052. Thus, in order to succeed on the prejudice aspect of the Strickland analysis, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694, 104 S.Ct. 2052. This is not, however, “an outcome-determinative test. In decisions following Strickland, the Supreme Court has reaffirmed that the touchstone of the prejudice component is ‘whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’ ” State v. Smith, 207 Wis.2d 258, 276, 558 N.W.2d 379, 386 (1997) (citations and quoted source omitted).

¶ 4 Further, we need not address both aspects of the Strickland test if the defendant does not make a sufficient showing on one. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Finally, our review of an ineffective-assistance-of-counsel claim is mixed. See State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). A circuit court's legal conclusions whether the lawyer's performance was deficient and, if so, prejudicial, are questions of law that we review de novo. Id., 153 Wis.2d at 128, 449 N.W.2d at 848. If those legal conclusions are based on facts found by the circuit court, those findings of fact will not be disturbed unless they are clearly erroneous. Id., 153 Wis.2d at 127, 449 N.W.2d at 848. We turn first to Lobermeier's two complaints that require application of Strickland.

A. Instructions to the jurors.

¶ 5 Pointing out that Solberg v. Robbins Lumber Co., 147 Wis. 259, 266–267, 133 N.W. 28, 31 (1911), opined that jurors may use what they know about life in assessing the evidence even though that knowledge is not common to all the jurors, Lobermeier argues that the trial court impermissibly told the jury that it could not. First, we look at what Solberg said, and then we see what the trial court told the jury.

The knowledge which men acquire in the rugged school of experience is a valuable asset to them, when they are called upon to perform jury duty. If there is a conflict in evidence pertaining to some fact upon which a farmer has acquired knowledge by his experience, which is not common to the general run of mankind, but which enables him to decide with accuracy who is telling the truth, the half dozen farmers who may be on a jury should be permitted to use that knowledge, and give their confrères the benefit of it. The other jurors are not bound to accept the statements as conclusive, but may give them such weight as they think they are entitled to.

Id. at 267–68, 133 N.W. 28.See also State v. Heitkemper, 196 Wis.2d 218, 225–226, 538 N.W.2d 561, 564 (Ct.App.1995) (“Jurors may rely on their common sense and life experiences during deliberations. This knowledge may include expertise that a juror may have on a certain subject.”).

¶ 6 The first comment about which Lobermeir complains is the trial court's colloquy with a jury-panel member who did not make the jury, but the colloquy was heard by those jurors who did:

THE COURT: Is there anybody here who works in any kind of job where you focus on senior citizens and particularly work with senior citizens on issues having to do with personal security, with driving, with financial affairs, with any kinds of ailments that senior citizens can sometimes have having to deal with memory, with ability to get around, anything like that, vision; anybody have a job like that?

...

[PANEL MEMBER]: I'm a nurse. I work in a hospital, so I do take care of senior citizens on a frequent basis and help them with some of the issues that you are talking about.

...

THE COURT: Okay. So a large number of your patients are senior citizens?

[PANEL MEMBER]: Yes.

THE COURT: How large would you?

[PANEL MEMBER]: Greater than half.

THE COURT: Okay. Do you have any special training in dealing with senior citizens on issues having to do with personal security or memory or things like that?

[PANEL MEMBER]: I wouldn't say special training, but I'm definitely familiar with it having or working with them all the time.

THE COURT: In this case the jury may be asked—I'm sorry, the jury may be asked to decide questions that involve issues like that. I'm not sure if the jury will or not, we'll have to see how the evidence turns out. But those sometimes happen in cases where senior citizens are victims, at least alleged to be victims.

If you're called as a juror in this case, you have to decide the case based on the evidence presented here. The jury is not allowed to turn to you as an expert and say, well, what do you think?

The reason we don't allow that is is the lawyers don't get their shot at you. They don't get to ask you questions about whether you really know what you're talking about or whether you have the right kind of experience or whether you've considered all the other facts in the case.

So if you were to be part of this jury, you would have to decide the case based on the evidence and not based on any particular expertise that you might have. If you're called as a juror, can you do that?

[PANEL MEMBER]: Yes.

Lobermeier contends that this tainted the jury, especially in light of the trial court's preliminary and final instructions, which we will set out after we see the other comments the trial court made to the jury panel that Lobermeier finds objectionable.

¶ 7 The next panel member to whom the trial court talked was a nursing assistant, and she told the trial court that “most” of her patients were senior citizens. She denied having any special training and answered “no” to the trial court's question whether there was “[a]nything about your experience that you thing [ sic ] would make you a[n] expert in dealing with senior citizens?” The trial court then asked: “If you're called as a juror in this case, would you be able to set aside what you know from senior citizens from having treated them in [the] hospital, and decide the case based only on the evidence presented here?” The panel member said that she would. She served on the jury.

¶ 8 Another member of the panel who served on the jury worked “as a physical therapist assistant at a rehab hospital for brain injury and...