State v. Tatum

• Decision Date: 02 February 1995
• Docket Number: No. 93-2883-CR,93-2883-CR
• Citation: 530 N.W.2d 407,191 Wis.2d 547
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ray A. TATUM, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 407

530 N.W.2d 407

191 Wis.2d 547

STATE of Wisconsin, Plaintiff-Respondent, v. Ray A. TATUM, Defendant-Appellant.

No. 93-2883-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 6, 1994.

Opinion Released Feb. 2, 1995.

Opinion Filed Feb. 2, 1995.

For the defendant-appellant the cause was submitted on the briefs of Ray A. Tatum, pro se of Green Bay.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen., and William L. Gansner, Asst. Atty. Gen.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

This is an appeal from an order denying Ray A. Tatum postconviction relief from judgments convicting him of disorderly conduct, battery, second-degree recklessly endangering safety, extortion, resisting arrest, and three counts of bail jumping. The issue is whether an evidentiary hearing was necessary to determine whether Tatum received effective assistance of counsel, a right guaranteed by the Sixth Amendment to the United States Constitution. We conclude that such a hearing was necessary but only as to one of Tatum's bail jumping charges. Accordingly, we reverse the trial court's order as to that charge ¹ and direct the trial court to hold a Machner hearing. ²

Tatum asserted in his postconviction motion that he was entitled to a new trial because his counsel was ineffective. He requested a Machner hearing. In his petition, Tatum claimed that trial counsel had failed to assure that a defense witness, Kevin Stevens, would not appear in his jail uniform and in shackles. The trial court denied Tatum's motion without a hearing, concluding that Tatum failed to show that he was prejudiced by the appearance of his shackled witness. Tatum appeals.

We review the trial court's denial of a motion for a Machner hearing de novo. State v. Toliver, 187 Wis.2d 346, 359, 523 N.W.2d 113, 118 (Ct.App.1994). It is here that the dissent's analysis takes a wrong turn. We agree with the dissent that we ordinarily review factual inferences deferentially. We do so because a trial court can see and hear witnesses and can more accurately draw factual inferences from testimony than can an appellate court. But here, the very thing of which Tatum complains is the lack of testimonial evidence resulting from the trial court's refusal to hold a Machner hearing. That is why we concluded in Toliver that our review was not deferential, as the dissent would have it be, but de novo.

Tatum's motion read in pertinent part:

The defendant's ... Sixth Amendment ... right[ ] to ... effective assistance of counsel [was] violated when defendant's trial counsel failed to make adequate arrangements for defendant's witness, Kevin Stevens, to appear before the jury and testify ... without the use of physical restraints of any kind.

Tatum also argued that his trial counsel failed to ask for a cautionary instruction regarding the shackles as a means to offset the prejudice of the reduced credibility of defendant's witness, Stevens. We need not consider this latter assertion, because we remand for another reason.

In Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir.1993), the court noted that "[a] long line of criminal cases has held that neither the defendant nor witnesses for the defense may be required to testify in shackles unless there is an 'extreme need.' " It quoted the following from Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970):

[E]ven to contemplate such a technique, much less to see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.

Lemons, 985 F.2d at 357. The Lemons court concluded that since the defendant's tendency towards violence was at issue, his appearance in shackles inevitably prejudiced the jury. Id. at 359.

In Sparkman v. State, 27 Wis.2d 92, 96, 133 N.W.2d 776, 779 (1965), the supreme court noted: "We must point out that the evils sought to be avoided by permitting the defendant to appear free from shackles is the creation of prejudice in the minds of the jury before whom the defendant is tried." And, in Harrell v. Israel, 672 F.2d 632, 635 (7th Cir.1982), the court held:

Concomitant to the defendant's right to appear before the jury without physical restraints is his right to have his witness appear that way also. Although the shackling of defense witnesses may be less prejudicial to the accused because it does not directly affect the presumption of innocence, it nevertheless may harm his defense by detracting from his witness' credibility. Thus, the general rule against the use of physical restraints in the courtroom applies to defense witnesses as well as the defendant himself.

(Citations omitted.)

In United States v. Garcia, 625 F.2d 162, 168 (7th Cir.), cert. denied, 449 U.S. 923, 101 S.Ct. 325, 66 L.Ed.2d 152 (1980) (quoting United States v. Esquer, 459 F.2d 431, 433 (7th Cir.1972), cert. denied,414 U.S. 1006, 94 S.Ct. 366, 38 L.Ed.2d 243 (1973)), the court reaffirmed that "the shackling of witnesses is an unfortunate and undesirable practice which should be employed only in cases of extreme need." The State does not claim that there was an extreme need to shackle Stevens.

The reasoning of these cases is that seeing a person in a courtroom in shackles inevitably prejudices a jury against that person. ³ But the cases which we have cited for this conclusion are all cases involving direct appeals. In direct appeals, the inquiry is whether there was an extreme need for shackles. ⁴ Here, Tatum asserts that his attorney was ineffective because he failed to take steps to assure that Stevens would not appear in shackles. Prejudice was inherent in the cases on direct appeal in which a defendant or defense witness appeared in shackles without an extreme need for them. But ineffective assistance of counsel cases have developed a specific definition of prejudice which is to be used in those cases.

In State v. Marty, 137 Wis.2d 352, 356, 404 N.W.2d 120, 122 (Ct.App.1987), we followed Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Johnson, 126 Wis.2d 8, 10, 374 N.W.2d 637, 638 (Ct.App.1985), rev'd on other grounds, 133 Wis.2d 207, 395 N.W.2d 176 (1986), in concluding that prejudice is required before counsel may be found ineffective. But prejudice was defined as whether "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Marty, 137 Wis.2d at 357-58, 404 N.W.2d at 122-23 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). We will therefore use that test to determine whether the asserted error of counsel is prejudicial. We may decide either the performance or prejudice prong first. State v. Moats, 156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990).

Stevens testified on behalf of Tatum in relation to one of the bail jumping charges. We therefore must consider the State's and Stevens's testimony to determine whether Stevens's presence in shackles was prejudicial, using the test found in Strickland and Marty. Because Stevens's testimony related only to one of Tatum's bail jumping charges, we limit our inquiry to that charge.

The State introduced Tatum's bond that he signed on the afternoon of May 7, 1992, just prior to being released from jail. The only evidence as to when Tatum was released came from Stevens, who said that both he and Tatum were released at about 2:30 p.m. on May 7. A specific provision of Tatum's bond required that he have no contact, direct or indirect, with the complaining witness, Delphine Patrick. Patrick testified that Tatum called her at 8:00 a.m. on May 7, and told her to drop the no contact provision. She also received a call from Stevens at about 2:00 p.m. asking if she was going to drop the no contact provision. At about 3:00 p.m., she received another call from Tatum. A neighbor, who knew Tatum's voice, listened to a small portion of the conversation and testified that Tatum asked Patrick to put his clothes in a bag, and that he would send someone over to get them. Patrick testified that Tatum told her that her apartment was his as much as hers and that he wanted the no contact provision dropped. He said that he would give her a week to think about it.

Stevens's testimony refutes that of Patrick and her neighbor. He testified that after he and Tatum were released from jail, they went to Stevens's motel room where they socialized with friends until about 7:30 or 8:00 p.m. At no time did Tatum call anyone. Stevens called Patrick at about 4:00 p.m. to obtain the telephone number of a mutual acquaintance. Though Patrick wanted to talk to him about Tatum, he refused to do so, and upon receiving the telephone number, he hung up.

Had the jury believed Stevens, it could not have believed Patrick's testimony that she received at least one telephone call from Tatum after he signed the May 7, 1992 bond. And, as the cases we have cited hold, when a witness for a defendant appears in shackles, the jury is prejudiced against the witness, and indirectly, against the defendant. But did that deprive Tatum of "a fair trial, a trial whose result is reliable[?]" Marty, 137 Wis.2d at 357-58, 404 N.W.2d at 122-23 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). We conclude that it did. ⁵ The only issue was whether to believe Stevens on the one hand or Patrick and her neighbor on the other hand. That issue was solely one of credibility, and Stevens's credibility was diminished by his appearance in shackles. There was no other evidence that Tatum violated the no contact provision of his May 7, 1992 bond upon which we could rely to conclude that the result of...