State v. Wells

• Decision Date: 29 May 2013
• Docket Number: No. 2012AP149.,2012AP149.
• Citation: 833 N.W.2d 872,2013 WI App 84,348 Wis.2d 762
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Warren Jamaal WELLS, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

348 Wis.2d 762

833 N.W.2d 872

2013 WI App 84

STATE of Wisconsin, Plaintiff–Respondent,

v.Warren Jamaal WELLS, Defendant–Appellant.

No. 2012AP149.

Court of Appeals of Wisconsin.

May 29, 2013.

OPINION TEXT STARTS HEREAppeal from an order of the circuit court for Milwaukee County: Rebecca F. Dallet, Judge.Affirmed.

Before CURLEY, P.J., FINE and KESSLER, JJ.¶ 1PER CURIAM.

Warren Jamaal Wells, pro se, appeals an order denying his postconviction motion, filed under Wis. Stat. § 974.06, seeking relief from his conviction for first-degree intentional homicide while armed and as a party to a crime.He claims that the State improperly charged him as a party to a crime without also charging and prosecuting a co-actor, and that the two lawyers who represented him at trial were ineffective for failing to investigate, to present certain witnesses, and to make appropriate motions.He alleges that his postconviction lawyer was ineffective for failing to raise these claims.We reject his arguments and affirm.

I.

¶ 2 Wells confessed to shooting Christopher Blucher to death.The State charged Wells with first-degree intentional homicide while using a dangerous weapon, as a party to a crime.Wells moved to suppress his confession, but the trial court denied the motion.The matter proceeded to a jury trial.Three State's witnesses testified that they saw the shooting, that they knew Wells, and that they recognized him as the shooter.¹Two of those witnesses also testified that Armondo Cornelius was present with Wells at the scene of the shooting.The jury found Wells guilty as charged.

¶ 3 Wells pursued a direct appeal, seeking a new trial on the ground that the trial court erroneously admitted his confession into evidence.We denied the claim and affirmed Wells's conviction.SeeState v. Wells,No.2007AP801–CR, unpublished slip op. (WI App Apr. 1, 2008).

¶ 4 Next, Wells filed the postconviction motion underlying this appeal.Proceeding pro se,he claimed that the lawyer who represented him during postconviction proceedings was constitutionally ineffective because that lawyer did not raise claims of prosecutorial misconduct or allege that Wells's trial lawyers were ineffective.The circuit court rejected Wells's claims without a hearing, and he appeals.²

II.

¶ 5 Wells claims that his postconviction lawyer was ineffective for not challenging the effectiveness of his trial lawyers and for not alleging prosecutorial misconduct.The two-pronged test for claims of ineffective assistance of counsel requires a defendant to prove both that the lawyer's performance was deficient and that the deficiency prejudiced the defense.Strickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).To demonstrate deficient performance, the defendant must show specific acts or omissions of the lawyer that are “outside the wide range of professionally competent assistance.”Id. at 690.To demonstrate prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”Id. at 694.If a defendant fails to satisfy one prong of the analysis, the reviewing court need not address the other.Id. at 697.

¶ 6 A lawyer is not ineffective for failing to make claims that would have been denied.SeeState v. Berggren,2009 WI App 82, ¶ 21, 320 Wis.2d 209, 228, 769 N.W.2d 110, 118–119.If Wells's allegations of prosecutorial misconduct and trial lawyer error lack merit, his postconviction lawyer had no obligation to pursue them.SeeState ex rel. Rothering v. McCaughtry,205 Wis.2d 675, 678, 556 N.W.2d 136, 138(Ct.App.1996).Accordingly, we turn to an examination of those allegations.

¶ 7We begin by considering Wells's contentions that, because the State did not charge anyone as his accomplice in this case, the State failed to demonstrate that Wells was a party to the crime of first-degree intentional homicide while armed, and, relatedly, that the State failed to prove the elements of the offense.Wells believes that these alleged flaws in the proceedings constitute prosecutorial misconduct and that his postconviction lawyer was constitutionally ineffective for not pursuing such a claim.We disagree.³

¶ 8 First, Wis. Stat. § 939.05, which governs party-to-a-crime liability, provides that every person concerned in the commission of a crime may be charged with and convicted of committing it.See§ 939.05(1).The statute further provides that a person is concerned in the commission of a crime if, inter alia, the person directly commits the crime or intentionally aids and abets the commission of it.See§ 939.05(2)(a)-(b).Therefore, the State may prosecute a person as a party to a crime “without convicting other participants or establishing the identity of the principal.”State v. Zelenka,130 Wis.2d 34, 47, 387 N.W.2d 55, 60–61(1986).

¶ 9 Second, “[t]he party to a crime charge does not add to or alter the elements of the offense to which the defendant is charged as a party.The manner of participation in a crime is not an element of the offense to which one is charged as party to a crime.”State v. Horenberger,119 Wis.2d 237, 243, 349 N.W.2d 692, 695(1984).

¶ 10The State thus did not act improperly by prosecuting Wells as a party to a homicide without also charging a co-actor or proving the identity of an accomplice.Wells's allegations to the contrary lack merit, and his postconviction lawyer was therefore not ineffective by foregoing them.

¶ 11 Next, Wells asserts that his trial lawyers were ineffective by failing to “investigate” Cornelius, who allegedly accompanied Wells to the scene, and by failing to offer Cornelius's testimony at trial.Wells supports his contention by pointing to a discussion during trial between the lawyers and the trial court touching on the alibi that Cornelius offered police.The Record reflects that the State disclosed this alibi to the defense during the discovery process, and Wells implies that, if called to testify at trial, Cornelius would have said that he was not present at the scene when Blucher was killed.Wells further implies that his trial lawyers failed him because Cornelius's hoped-for testimony would have undermined the credibility of the State's witnesses who claimed to have seen Cornelius with Wells at the time of the offense.Wells asserts that his postconviction lawyer was constitutionally ineffective in turn by not making these claims.

¶ 12 Our analysis is governed by the rule that when a defendant claims that a trial lawyer was ineffective for failing to take specific actions, the defendant“ ‘must show with specificity what the actions, if taken, would have revealed and how they would have altered the outcome of the proceeding.’ ”SeeState v. Provo,2004 WI App 97, ¶ 15, 272 Wis.2d 837, 850, 681 N.W.2d 272, 278(citation omitted).Here, however, Wells's postconviction motion does not disclose the details of Cornelius's statement to police, nor does the motion include any affidavits or statements from Cornelius as to what he would have said under oath.Indeed, Wells fails to demonstrate that Cornelius would have testified at all rather than invoked his right to remain silent.SeeU.S. Const. amend. V.As the circuit court explained: “it is completely unknown what the testimony of Armondo Cornelius would have been, how it would have changed the outcome of the trial, or even if his whereabouts were known to anyone.”Wells thus does not show that he suffered any prejudice as a consequence of his trial lawyers' actions or inactions in regard to Cornelius.SeeStrickland,466 U.S. at 687.Because Wells does not demonstrate that his trial lawyers were ineffective, he necessarily does not demonstrate that his postconviction lawyer erred by failing to allege their ineffectiveness.SeeState v. Ziebart,2003 WI App 258, ¶ 15, 268 Wis.2d 468, 480, 673 N.W.2d 369, 375(to establish postconviction lawyer's ineffectiveness for failing to challenge trial lawyer's effectiveness, defendant must show that trial lawyer was constitutionally ineffective).

¶ 13 Next, Wells contends that his trial lawyers were ineffective by not ensuring that an alibi witness, Francisco Mercado, testified at trial.Again, however, Wells fails to support his claim.First, Wells did not submit an affidavit from Mercado reflecting the testimony he would have given.SeeProvo,2004 WI App 97, ¶ 15, 272 Wis.2d at 850, 681 N.W.2d at 278.Second, although the Record shows that Mercado told police that Wells was at Mercado's home at some point on the date of the homicide, the jury heard Wells's admission that he was at Mercado's home only “before and after,” rather than during, the time of the shooting.Wells fails to demonstrate why Mercado's testimony would have had any effect on the outcome of the trial in light of this admission.Seeibid.

¶ 14 Moreover, when assessing claims of a lawyer's ineffectiveness, we make every effort “to avoid determinations of ineffectiveness based on hindsight ... and the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms.”SeeState v. Johnson,153 Wis.2d 121, 127, 449 N.W.2d 845, 847–848(1990).In this case, the parties and the trial court made a record during trial regarding the herculean efforts expended to persuade Mercado to come to the courthouse voluntarily.When Mercado refused, the trial court offered to issue a body attachment directing law enforcement officers to arrest him and bring him to court by force.Wells's trial lawyers declined that offer, deciding, as summarized by the trial court, that “it was unwise and impermissibly risky to have Mr. Mercado arrested and have him brought into the courtroom against his will to say at that point something that may not have been helpful for the defense.”

¶ 15 The trial lawyers thus made a strategic decision about how to proceed when a potential witness proved uncooperative....