State v. Simmons, 89-1291-CR
| Decision Date | 29 March 1990 |
| Docket Number | No. 89-1291-CR,89-1291-CR |
| Citation | 455 N.W.2d 914,155 Wis.2d 466 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. John F. SIMMONS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order of the circuit court for Dane county: MARK A. FRANKEL, Judge.
Circuit Court, Dane County.
AFFIRMED.
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
John F. Simmons appeals from a judgment of conviction for endangering safety by conduct regardless of life, contrary to sec. 941.30, Stats., two counts of distribution of a controlled substance to a person under age eighteen, contrary to sec. 161.46(3), Stats., possession of a firearm, contrary to sec. 941.29, and delivery of a controlled substance, contrary to sec. 161.41(1)(c). 1
The issues are whether Simmons was prejudiced by trial counsel's deficient trial preparation, specifically his failure to present the testimony of three witnesses; whether Simmons was prejudiced by the trial court's denial of Simmons' request for substitute counsel; whether trial counsel provided ineffective assistance of counsel by failing to strike from the jury a potential juror who was married to a police officer or a potential juror whose brother-in-law was a police officer; whether Simmons' right to confrontation was denied by introduction of hearsay testimony; and whether Simmons was prejudiced by court personnel reading the preliminary examination testimony to the jury. We reject all of Simmons' contentions and affirm.
V.A., a juvenile, alleged that on July 11, 1987, two males known to her as "John Frank" and "Joe Frank" came to her apartment and provided her with what she believed was cocaine. She observed "John" remove a handgun from the trunk of their car. The juvenile further alleged that "Joe" left her apartment to sell cocaine. "John" left her apartment after that. The two men later returned and became involved in an argument. "John" pointed the gun at "Joe" and pulled the hammer. The juvenile left the apartment and contacted the police.
Police officers entered the apartment and located a gun as well as cocaine. One of the men identified himself as Simmons. The other man identified himself as Joseph Burns. Police conducted a patdown search of Simmons and found a clear plastic bag containing a substance resembling cocaine in Simmons' shirt pocket. Police determined the substance to be cocaine. Simmons had previously been convicted of several felonies.
The state public defender's office appointed counsel to represent Simmons. The matter proceeded to a jury trial. Simmons was found guilty of five of the six charges. He sought postconviction relief, alleging that he received ineffective assistance of counsel. The trial court found that counsel's performance fell below an objective standard of reasonableness in three areas: communications with Simmons were minimal, at best; counsel failed to investigate leads provided by Simmons or other matters; and counsel's preparation was late. The trial court went on to hold that Simmons failed to establish that he was prejudiced by trial counsel's deficient performance. It denied Simmons' postconviction motion.
In order to prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Resio, 148 Wis.2d 687, 697, 436 N.W.2d 603, 607 (1989). The state concedes that the first prong of this test has been met. To establish prejudice, a defendant must show a reasonable probability exists that but for counsel's errors, the result of the proceedings would have been different. Id. at 698, 436 N.W.2d at 608. Whether counsel's actions constitute ineffective assistance is a mixed question of law and fact. What counsel did or did not do and the basis therefor are factual determinations which will be upheld unless clearly erroneous. The ultimate determination of whether counsel's performance was ineffective is a question of law to be decided without deference to the trial court's decision. Id. at 697, 436 N.W.2d at 607.
Simmons contends that he was prejudiced by trial counsel's failure to present the testimony of Julie Scovile, Burns's girlfriend. He seems to assume that her testimony would be similar to statements made in a police report which is attached to his brief. While this report was admitted as an exhibit at the postconviction motion hearing, it is not part of the appellate record. Assertions of fact which are not part of the record will not be considered. Jenkins v. Sabourin, 104 Wis.2d 309, 313-14, 311 N.W.2d 600, 603 (1981).
The trial court found that Scovile's statements to the police were consistent with the state's theory of prosecution that Simmons furnished drugs to Burns and if Burns was seen with drugs on his person, that does not substantially impeach the state's theory that Simmons furnished Burns with those drugs. We will assume, given an incomplete record, that every fact essential to sustain the trial court's decision is supported by the record. T.W.S., Inc. v. Nelson, 150 Wis.2d 251, 255, 440 N.W.2d 833, 835 (Ct.App.1989). We assume that the record supports the trial court's determination that Scovile's statement to the police was consistent with the state's theory. This being the case, Simmons could not have been prejudiced by counsel's failure to obtain Scovile's testimony.
Simmons next contends that the trial court denied him a fair trial by denying his motion for substitution of counsel. The trial court denied the motion because it was brought at the last minute and because trial counsel stated he felt prepared. Since the trial court concluded that Simmons was not prejudiced by trial counsel's deficient preparation, a conclusion we uphold, the court's refusal to appoint substitute counsel was harmless error.
Simmons argues that trial counsel was ineffective because he failed to interview witnesses or follow up on leads provided by Simmons. The trial court found that Simmons had not shown he was prejudiced because no record was made that these witnesses would have testified favorably to him. We agree. It is not sufficient to merely show that trial counsel failed to contact potential witnesses. Simmons had to establish a reasonable probability that the result of the proceedings would have been different if counsel had contacted the witnesses. Thus, Simmons had to show that if trial counsel had interviewed these witnesses and procured their testimony, it is reasonably probable that testimony would have led to a different result. The record fails to show what these witnesses would have stated, or whether they observed any of the relevant events. Simmons has not shown prejudice.
Simmons argues that trial counsel was ineffective because he failed to strike from the jury a woman who was married to a police officer. The record reveals that juror Buller stated she was married to a police officer. She was stricken from the panel. Perhaps Simmons' complaint is about juror Hermanson, whose brother-in-law is on the Manitowoc Police Department, but who served on the jury. Juror Hermanson stated that her brother-in-law's employment would have no effect on her view of the police testimony in the case and that she could follow an instruction that she should not give additional weight to a police witness's testimony merely due to his or her employment. "The sine qua non of whether a person is qualified to serve as a juror is whether he or she can be fair and impartial." State v. Louis, 152 Wis.2d 200, 206, 448 N.W.2d 244, 246 (Ct.App.1989). No showing was made that juror Hermanson could not be fair and impartial. The mere fact, alone, that she has a relative on the police force does not create an obligation on the part of defense counsel to strike her from the jury. We conclude Simmons failed to establish that counsel's performance was deficient or that he was prejudiced by counsel's failure to strike juror Hermanson.
Simmons argues that he was denied effective assistance of trial counsel because trial counsel spent less than two hours preparing for trial. He asserts this is per se prejudicial. He cites no authority for the proposition that spending only two hours preparing for a jury trial is per se prejudicial. Arguments unsupported by citation to legal authority will not be considered. State v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370, 378 (Ct.App.1980). In any event, our review of the record indicates that trial counsel moved to dismiss the complaint because the preliminary hearing was not held within...
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