State v. Trawitzki
| Decision Date | 29 June 2001 |
| Docket Number | No. 99-2234-CR.,99-2234-CR. |
| Citation | 2001 WI 77,244 Wis.2d 523,628 N.W.2d 801 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jason J. TRAWITZKI, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs and oral argument by Donald T. Lang, assistant state public defender.
For the plaintiff-respondent the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶ 1.
In this case, we review a court of appeals decision that affirmed a circuit court's denial of a post-conviction motion brought by Petitioner Jason J. Trawitzki (Trawitzki). After Trawitzki was found guilty of ten theft charges for his role in the taking of ten firearms from a home and five charges of concealing stolen property for his role in the subsequent hiding of five of the firearms, he claimed that the charges were multiplicitous, and therefore in violation of the constitutional prohibition against double jeopardy. Trawitzki also claimed that his trial counsel was ineffective for failing to impeach three of the State's witnesses with the specific number of prior convictions for each one.
¶ 2. The circuit court denied his motion. The court of appeals affirmed. State v. Trawitzki, 2000 WI App 205, 238 Wis. 2d 795, 618 N.W.2d 884. We accepted Trawitzki's petition for review.
¶ 3. We hold that the charges are not multiplicitous because the charges are not identical in fact, and because Trawitzki has not overcome the presumption that the legislature intended to allow multiple prosecutions. We further hold that Trawitzki's trial counsel was not ineffective for failing to impeach three of the State's witnesses with the number of their prior criminal convictions, because Trawitzki has not established that this failure was prejudicial to him. Confidence in the outcome of the trial has not been undermined by such failure. Accordingly, we affirm the court of appeals decision that in turn affirmed the circuit court's judgment and its denial of Trawitzki's post-conviction motion.
¶ 4. On August 29, 1997, members of a criminal gang known as the West Side City Crips burglarized the Lehman residence in Watertown. Included in the group that entered the home were Trawitzki, Kristy Lehman (Lehman), Chris Schoch (Schoch), Jason Glascock (Glascock), and Johnny Weiss (Weiss). Members of this group took ten firearms from various rooms and wrapped them all in a sheet, in order to carry the firearms out of the home. The firearms were then placed in the trunk of Glascock's car and taken to the Weiss residence, where they were stored in the basement. The next morning, Trawitzki, Schoch, Glascock, Weiss, Phillip Ziegler, and J.R. Robinson took five of the stolen firearms and hid them near a bridge in Helenville. Subsequently, members of this group, including Trawitzki, traveled to Minnesota where they were taken into custody near Duluth. Some of the firearms were found in their possession.
¶ 5. The State charged Trawitzki with one count of armed burglary as a party to a crime and in association with a criminal gang, in violation of Wis. Stat. §§ 943.10(1)(f), 943.10(2)(b), 939.05, and 939.625(1)(a)(1997-98).1 The State also charged Trawitzki with ten counts of theft for taking and carrying away a firearm as a party to a crime and in association with a criminal gang, in violation of Wis. Stat. §§ 943.20(1)(a), 943.20(3)(d)5, 939.05, and 939.625(1)(a). Lastly, the State charged Trawitzki with five counts of concealing stolen property as a party to a crime and in association with a criminal gang, in violation of Wis. Stat. §§ 943.20(1)(a), 943.20(3)(d)5, 939.05, and 939.625(1)(a).
¶ 6. Trawitzki pled not guilty to all charges. He admitted being present at the Lehman residence when the ten firearms were carried out, and being present when the five firearms were concealed in Helenville, but denied participating in the crimes. He also denied being a member of the West Side City Crips.
¶ 7. The case was tried before a jury. During the trial, Lehman, Schoch, and Glascock testified for the State and implicated Trawitzki in the crimes charged. Lehman testified that Trawitzki was a member of the West Side City Crips, that Trawitzki went to the Lehman residence on August 29, and that Trawitzki carried firearms from the trunk of Glascock's car into the Weiss residence. Schoch testified that Trawitzki was a member of the West Side City Crips, that Trawitzki entered the Lehman residence on August 29, and that Trawitzki traveled to Helenville with Glascock and Ziegler to hide the firearms. Glascock testified that Trawitzki entered the Lehman residence on August 29, that Trawitzki carried a bag of ammunition out of the basement of the Lehman residence, that Trawitzki assisted in placing the firearms in the Weiss basement, and that Trawitzki went to Helenville to hide the firearms. All three testified that they were incarcerated for their roles in the events that led to the charges against Trawitzki. In addition, all three testified while wearing jail or prison clothes.
¶ 8. The State also called other witnesses who testified to Trawitzki's involvement in the crimes, including Katy Eigenberger (Eigenberger), Steve Cira (Cira), Watertown Police Detective Kenneth Severn (Detective Severn), and Dodge County Deputy James Ketchem (Deputy Ketchem). Eigenberger, an acquaintance of Trawitzki, Lehman, Schoch, Glascock, and others in the gang, testified that, on August 30th, members of this group told her that Trawitzki, Lehman, Schoch, and Glascock broke into the Lehman residence and took firearms. Cira testified that Trawitzki was a member of the West Side City Crips. Detective Severn, who investigated the August 29th burglary at the Lehman residence, testified that Schoch told him, in an interview on January 24, 1998, that Trawitzki carried at least one firearm up from the basement of the Lehman residence on August 29th. Deputy Ketchem, who picked up Trawitzki as a runaway on August 7, 1997, testified that Trawitzki claimed to be a member of the Crips in Watertown.
¶ 9. In addition, Trawitzki's own testimony placed him at the scene of the crimes. He testified that he entered the Lehman residence on August 29th, that he saw the firearms wrapped in a sheet on the kitchen floor, and witnessed Schoch carry the firearms out of the Lehman residence. He also testified to traveling to Helenville with Glascock and Ziegler when the firearms were hidden near the bridge.
¶ 10. The jury found Trawitzki guilty of all charges. The court sentenced Trawitzki to a 15-year prison term for the burglary charge. The court withheld sentence on the other 15 charges, placing Trawitzki on probation for 10 years on each charge, to run concurrently.
¶ 11. Trawitzki brought a post-conviction motion. He claimed that all of the firearm theft charges and the concealing stolen firearm charges were multiplicitous, because all the charges arose from "a single act of taking and a single act of concealing." (Br. in Support of Def.'s Post-conviction Mot. at 2). Trawitzki claimed that all of the firearms were removed from the Lehman residence at one time, when the firearms were wrapped in a sheet and carried out of the house. Trawitzki also argued that the legislature did not intend multiple charges for a single incidence of taking and a single act of concealing the firearms. According to Trawitzki, the legislature intended increased penalties based on the value of the items stolen, not the number of items. Trawitzki also contended that punishing theft of multiple firearms and the concealing of multiple firearms with multiple charges would lead to arbitrary and absurd results. For example, the State could charge a person with two counts of theft for stealing a pair of socks.
¶ 12. In addition, Trawitzki claimed that he was deprived of his constitutional right to the effective assistance of counsel, because his trial counsel failed to impeach Lehman, Schoch, and Glascock, by questioning them about the existence and number of their prior criminal convictions. Trawitzki suggested that the State's case against him rested primarily on the testimony of these three witnesses. Arguing that prior criminal convictions are relevant to the jury's determination of a witness' credibility, Trawitzki contended that with such information before them the jurors would have reasonably doubted the credibility of the three witnesses, when they implicated him in the crimes charged.
¶ 13. The circuit court denied Trawitzki's postconviction motion.2 The circuit court held that the firearm theft charges and the concealing stolen property charges against Trawitzki were not multiplicitous, because each charge required proof of a different fact, namely, the specific identity of each firearm taken away and later concealed. The circuit court's conclusion also relied on the fact that each theft required "a new volitional act to take or conceal a different firearm." (Tr. Ct. Mem. Decision at 3). Furthermore, the circuit court held that Trawitzki could not rebut the presumption that the legislature intended separate charges in regard to each firearm. In reaching this determination, the circuit court relied on the legislature's choice to use the singular form of the word "firearm" in Wis. Stat. § 943.20(3)(d)5. The circuit court also noted that the theft statute treaters firearms differently than other forms of property, punishing the theft of a firearm and the concealment thereof as a felony regardless of its value, because of the dangerousness associated with such acts in regard to firearms.
¶ 14. In addition, the circuit court held that Trawitzki was not denied effective assistance of counsel as a result of his trial counsel's failure to impeach Lehman, Schoch, and Glascock with their prior criminal convictions. The circuit court concluded that trial counsel's performance was not...
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