State v. Pitsch, 84-627-CR

• Citation: 124 Wis.2d 628,369 N.W.2d 711
• Decision Date: 28 June 1985
• Docket Number: No. 84-627-CR,84-627-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas L. PITSCH, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 711

369 N.W.2d 711

124 Wis.2d 628

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas L. PITSCH, Defendant-Appellant.

No. 84-627-CR.

Supreme Court of Wisconsin.

Argued May 29, 1985.

Decided June 28, 1985.

Matthew H. Huppertz, Milwaukee (argued), for defendant-appellant; Van Skike & Huppertz, Milwaukee, on brief.

Sally L. Wellman, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

ABRAHAMSON, Justice.

This appeal, before the court on certification by the court of appeals pursuant to sec. 809.61. Stats.1983-84, is from a judgment of conviction of theft in the amount of $2,100, contrary to sec. 943.20(1)(a), Stats.1983-84, and from an order denying postconviction relief. The judgment and order were entered by the circuit court for Waukesha county, Roger P. Murphy, circuit judge. The motion for postconviction relief was based mainly on a claim of ineffective assistance of counsel.

The court of appeals, 121 Wis.2d 710, 362 N.W.2d 428, certified the appeal to this court, requesting that we decide the issue of "What is the appropriate standard to be applied in Wisconsin in the determination of whether a defendant has been denied his state and federal constitutional right to the effective assistance of counsel?" Because we conclude that the defendant was denied his federal constitutional right to the effective assistance of counsel, we reverse the conviction and order and remand the cause for a new trial.

The facts on which this appeal is based arose out of the defendant's trial for theft of jewelry, valued at $2,000, belonging to Mrs. Richert. The theft occurred during a birthday party which the defendant and his girlfriend, a juvenile, attended, along with approximately 30 other people, at the home of Mrs. Richert. The defendant denied he took the jewelry.

The state called several witnesses at trial. Mrs. Richert testified that she saw the defendant and his girlfriend upstairs outside Mrs. Richert's bedroom on the night of the party and that they left immediately after she told them to go downstairs. The proprietor of the Gold and Silver Shop testified that on May 10, 1982, he bought several items of jewelry, later identified as belonging to Mrs. Richert, from a Mr. Straehler. Other testimony indicated that after the sale Mr. Straehler returned to his car, which was parked outside the shop, and that the defendant was seated in the car. Both individuals were arrested after the proprietor summoned the police.

An acquaintance of the defendant testified on direct examination that on May 9, 1982, he had a conversation with the defendant during which the defendant stated he had taken some items of jewelry but did not indicate from where he had taken them. The state declared the witness to be hostile and cross-examined him. He had previously told police that the defendant said he "stole" the jewelry. During cross-examination by the defense the witness stated that he had given an untrue statement to the police. The witness admitted he had three prior convictions.

The defendant and his girlfriend testified on behalf of the defendant. Both testified that the girlfriend had given the items to the defendant, telling the defendant that she had found them while cleaning her jewelry box and asking the defendant to get an appraisal and possibly sell them. On cross-examination, the girlfriend revealed she had given him jewelry on two or three previous occasions with a similar explanation. She also said she had a child by the defendant and was reminded of a prior statement given to the investigating officer in which she had stated that she found the jewelry on the steps of the house and that the defendant was with her at the time. The girlfriend testified that she stole the jewelry without the defendant's knowledge and that as a result of this theft, she had been found delinquent by the juvenile court.

The defendant testified against the advice of counsel. He testified that he did not take the jewelry. Furthermore, he said that Mr. Staehler had gone with him to the Gold and Silver Shop because Mr. Staehler knew the proprietor and would be able to get a good deal. The defendant also stated that his girlfriend had never given him jewelry before and that he did not go into the Gold and Silver Shop with Mr. Staehler because "he didn't feel like it."

On direct examination defense counsel asked the defendant on "how many occasions he had been convicted of a crime." Defense counsel apparently followed the usual trial strategy of raising the issue of defendant's prior convictions on the premise that this approach is less damaging than if the prosecutor raises the issue first. See, e.g., State v. Adams, 257 Wis. 433, 436, 43 N.W.2d 446 (1950); Nicholas v. State, 49 Wis.2d 683, 689, 183 N.W.2d 11 (1971). The defendant responded "two." On cross-examination, the prosecutor established that the defendant had been convicted on at least three separate occasions of nine offenses. ¹ Because the defendant had misrepresented the number of his prior convictions, the prosecutor was also able to put the nature of these offenses before the jury. State v. Hungerford, 54 Wis.2d 744, 748-49, 196 N.W.2d 647 (1972). Cf. Sec. 906.09(1), Stats.1983-84; Underwood v. Strasser, 48 Wis.2d 568, 570-71, 180 N.W.2d 631 (1970). The state was thus able to place before the jury evidence that the defendant had been convicted once of attempted theft, twice of theft, once of entry into a locked vehicle with intent to steal, once of criminal damage to property, and four times of burglary.

The defendant now claims that he is entitled to a new trial because he was denied his state and federal constitutional rights to the effective assistance of counsel. The state acknowledged in oral argument, although its brief was more guarded, that counsel's performance was arguably deficient. In any event the state urges that defense counsel's performance, deficient or not, did not result in the defendant's receiving ineffective assistance of counsel in the constitutional sense.

The defendant makes reference to both art. I, secs. 7 and 8, of the Wisconsin Constitution and to the sixth and fourteenth amendments of the United States Constitution. We observe, first, that when this court interprets a provision of the federal constitution, this court is bound by the interpretations which the United States Supreme Court has given that provision. Although "it is the prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries under the Wisconsin Constitution than is mandated by the United States Supreme Court under the Fourteenth Amendment," State v. Doe, 78 Wis.2d 161, 171, 254 N.W.2d 210 (1977), these greater protections, when found, are based upon the state constitution and this court's interpretations thereof, not upon this court's independent interpretation of the United States Constitution. In analyzing the defendant's claim of ineffective assistance of counsel under the sixth and fourteenth amendments of the United States Constitution, we therefore turn to relevant decisions of the United States Supreme Court.

The Supreme Court has only recently articulated a test for assessing counsel's representation under the sixth amendment. Thus, although the Court had discussed the failure to provide counsel, it was not until Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and more recently Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, --- U.S. ----, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), that the Supreme Court considered situations in which counsel participated in the proceedings but the defendant claimed to be deprived of effective assistance because counsel failed to render adequate legal assistance. Strickland v. Washington, 104 S.Ct. at 2063-64.

In Strickland v. Washington, the Court set forth a two-part test for determining whether counsel's actions constituted ineffective assistance in the constitutional sense: deficient performance and prejudice to the defendant. The court set forth the test as follows: "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 2064.

The standard of review the Court applies to each of these questions is that "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Id. at 2070. ² Thus, we will not reverse the circuit court's findings of fact, that is, the underlying findings of what happened, unless they are clearly erroneous. Sec. 805.17(2), Stats.1983-84. The questions of whether counsel's behavior was deficient and whether it was prejudicial to the defendant are questions of law, and we do not give deference to the decision of the circuit court. We turn now to a consideration of the first prong of the Strickland v. Washington test.

The defendant points to seven specific deficiencies in defense counsel's performance. First, prior to the direct examination in which defense counsel questioned the defendant regarding the number of occasions on which he had been convicted of a crime, defense counsel did not file a discovery demand pursuant to sec. 971.23(2), Stats.1983-84, under which the district attorney would have been compelled to furnish a copy of the defendant's criminal record which was within the possession, custody or control of the state. Second, although defense counsel admittedly knew of the "open file" policy of the district attorney, defense counsel did not avail himself of this policy, which would have allowed him to examine the district attorney's entire file. Third, defense counsel did not request a hearing outside the presence...