State v. Nelson

• Decision Date: 28 January 2021
• Docket Number: Appeal No. 2020AP892-CR
• Parties: STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. MICHAEL E. NELSON, DEFENDANT-APPELLANT.
• Court: Wisconsin Court of Appeals

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
MICHAEL E. NELSON, DEFENDANT-APPELLANT.

Appeal No. 2020AP892-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

January 28, 2021

NOTICE

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.

Cir. Ct. No. 2018CF232

APPEAL from a judgment and an order of the circuit court for Dodge County: BRIAN A. PFITZINGER, Judge. Affirmed.

Before Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Michael Nelson was convicted in the Dodge County Circuit Court, following a jury trial, of four counts of misdemeanor bail

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jumping and one count each of threatening a law enforcement officer, throwing or discharging bodily fluids at a public safety worker, resisting or obstructing an officer, and disorderly conduct. See WIS. STAT. §§ 946.49(1)(a), 940.203(2), 941.375(2), 946.41(1), and 947.01(1) (2015-16).¹ Nelson filed a postconviction motion requesting relief because, according to Nelson, his trial counsel was constitutionally ineffective for the following two reasons. First, his trial counsel failed to seek dismissal of the discharging bodily fluids at a public safety worker charge, and a related bail jumping charge, on the ground that police "destroyed" or failed to preserve exculpatory evidence. Second, his trial counsel failed to argue that the statutory exclusion of felons from jury service violated Nelson's constitutional right to have potential jurors selected from a "fair cross section of the community" and, for that reason, he should be granted a new trial on all charges. The circuit court denied Nelson's postconviction motion without an evidentiary hearing on the first claim raised by Nelson and, following an evidentiary hearing, denied Nelson's motion on the second claim. We agree with the circuit court that Nelson has failed to establish that his trial counsel was constitutionally ineffective. We therefore affirm the judgment of conviction and the order of the circuit court.

BACKGROUND

¶2 Following an incident that occurred in July 2018, Nelson was charged with: four counts of misdemeanor bail jumping and one count each of disorderly conduct, threatening a law enforcement officer, discharging bodily

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fluids at a public safety worker,² and obstructing a law enforcement officer. Those charges were tried before a jury. Nelson is black, and it is undisputed that the jury panel, which included twelve jurors and one alternate juror, did not include any black persons.

¶3 Testimony at trial adduced the following evidence.

¶4 Just before 9:00 p.m. on July 17, 2018, police responded to a 911 call reporting a domestic abuse incident at a residence in Beaver Dam. The caller was S.N.³ S.N. told the responding officer, Jace Laning, that Nelson, who was not then at S.N.'s residence, had punched her. An order in a then-pending criminal case against Nelson prohibited Nelson from contacting S.N.⁴

¶5 Before Officer Laning's shift ended, he met with Officers K.H., Brad Konkel, and Derek Harmsen, who were working the next shift, and informed them of the domestic abuse report at S.N.'s residence and the no-contact order in place against Nelson. During that briefing, police dispatch received a call that Nelson may have returned to the vicinity of S.N.'s residence. Officers K.H., Konkel, and Harmsen each drove a squad car to S.N.'s residence.

¶6 Officer K.H. was the first officer to arrive at S.N.'s residence. When K.H. arrived at S.N.'s apartment building, he observed Nelson sitting outside the

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building talking on a phone. K.H. approached Nelson and asked about the incident that occurred earlier in the evening with S.N. When Officer Konkel arrived at the scene, he observed K.H. speaking with Nelson, and Nelson appeared "very calm." K.H. informed Nelson that he was placing Nelson under arrest and began to handcuff Nelson. Both K.H. and Konkel testified that, while K.H. was handcuffing Nelson, Nelson became verbally combative and physically made it difficult for K.H. to secure the handcuffs on Nelson.

¶7 After Nelson was hand-cuffed, K.H. walked Nelson to an open squad car door. During that time, Nelson continued, according to K.H., to "verbal[ly] assault" K.H., and Nelson next "cock[ed] his head back and sp[at] towards [K.H.'s] face." Some of Nelson's saliva hit K.H. on the left side of K.H.'s face. Konkel saw Nelson arch his back and then rapidly lean his upper torso forward. Konkel did not see Nelson spit at K.H., but heard what he believed to be a spitting sound. Immediately thereafter, Konkel observed "some sort of liquid on the left side of [K.H.'s] face."

¶8 At the time Officer K.H. responded to the report that Nelson had returned to the vicinity of S.N.'s residence, his squad car was equipped with two video cameras. One camera was mounted on the front windshield facing outward, and one camera was mounted above the front passenger seat headrest facing the rear of the vehicle. Together, the cameras recorded approximately forty-five minutes of footage from the beginning of K.H.'s encounter with Nelson until their arrival at the jail. That footage, which was played for the jury, captured Nelson making threats directed at K.H. and exhibiting disruptive behavior. Because of the positioning of the cameras, the footage from the cameras in K.H.'s squad car did not capture Nelson spitting at K.H.

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¶9 Officer Konkel's squad car was equipped with a video camera, but that camera did not record any of the events surrounding Nelson's arrest. Konkel's squad car camera did not activate automatically. Konkel testified at trial that he did not manually activate the camera because the policy of the Beaver Dam Police Department is that officers are required to activate their camera systems "during a traffic contact or other very significant or major incident," and Konkel did not consider the incident with Nelson to be such a situation when he arrived at the scene. Konkel acknowledged that had he parked his squad car facing K.H.'s squad car, and had his squad car camera been recording, the camera "may have captured part of " the spitting incident.⁵

¶10 On Officer Harmsen's way to the scene, his speed exceeded forty miles per hour, at which point his squad car camera activated automatically. When Harmsen arrived at the scene, and before he left his squad car, he turned the camera off. According to Harmsen, he deactivated the camera because the situation at that point was "calm and collect[ed]," nothing "disruptive or emergent" was happening, and deactivating the camera in those circumstances is "common practice" for police officers in his department. On cross-examination, Harmsen testified that, based on where his squad car camera was situated inside his car, the camera "[p]ossibly ... could have" captured the spitting incident if the camera had been activated.

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¶11 The jury found Nelson guilty of all eight counts. Nelson alleged in a postconviction motion, and argues on appeal, that his trial counsel was constitutionally ineffective for two reasons:

1. Trial counsel failed to seek dismissal of the charge of discharge of bodily fluids at the police officer, and its related bail jumping charge, on the ground that Officer Harmsen "[k]nowingly and [w]illfully [d]estroyed" and failed to preserve exculpatory evidence; Officer Harmsen's deactivation of his squad car camera when he arrived at the scene constituted the purported destruction of evidence and failure to preserve.⁶

2. Trial counsel failed to argue that the statutory exclusion of felons from jury service violates Nelson's constitutional right to have potential jurors selected from a fair cross section of the community.

¶12 The circuit court denied Nelson's postconviction motion. The court rejected, without an evidentiary hearing, Nelson's first claim that his trial counsel was ineffective for not seeking the dismissal of the two charges against Nelson based on the alleged destruction of evidence by Officer Harmsen. The court held

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an evidentiary hearing on Nelson's second claim regarding the potential jurors, after which the court rejected that claim. Nelson appeals.

¶13 We discuss additional material facts in our discussion below.

DISCUSSION

¶14 There are two issues before us: (1) whether Nelson is entitled to an evidentiary hearing on his claim that his trial counsel was constitutionally ineffective for not seeking dismissal of the charge of discharging bodily fluids at a public safety worker, and its related bail jumping charge, on the ground that Nelson's rights were violated based on Officer Harmsen's purported destruction of, or failure to preserve, exculpatory evidence⁷; and (2) whether trial counsel's

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representation of Nelson was constitutionally ineffective for not challenging what Nelson describes as the "systematic exclusion" of blacks from Dodge County juries based on the "statutory exclusion of felons" from the list of persons eligible for jury service.

¶15 We begin our analysis by setting forth governing principles and our standard of review in cases in which a circuit court has denied a defendant's postconviction motion based on claims of ineffective assistance of counsel with or without an evidentiary hearing on the motion.

I. Governing Principles and Standard of Review.

¶16 The Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to effective assistance of counsel. State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334. To establish ineffective assistance of counsel, a defendant must demonstrate: (1) that counsel's performance was...