State v. Williams

• Decision Date: 03 September 2003
• Docket Number: Appeal No. 02-2777.
• Parties: STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. JAMES B. WILLIAMS, DEFENDANT-APPELLANT.
• Court: Wisconsin Court of Appeals

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STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. JAMES B. WILLIAMS, DEFENDANT-APPELLANT.

Appeal No. 02-2777.

Court of Appeals of Wisconsin, District I.

September 3, 2003.

APPEAL from an order of the circuit court for Milwaukee County, No. 98CF005276, RICHARD J. SANKOVITZ, Judge. Affirmed.

Before Wedemeyer, P.J., Fine and Curley, JJ.

PER CURIAM.

¶1 James B. Williams, pro se, appeals from an order denying his motion for postconviction relief filed pursuant to WIS. STAT. § 974.06 (2001-02).¹ Williams contends that: (1) he was denied due process as a result of prosecutorial misconduct; (2) he was convicted in violation of the double jeopardy clause; (3) the postconviction court failed to adequately address the issue of judicial bias; (4) both trial and appellate counsel were ineffective; and (5) his sentence was unduly harsh. He contends that his appellate counsel was ineffective for failing to raise claims of ineffective assistance of trial counsel, prosecutorial misconduct, judicial bias, and the violation of his protection against double jeopardy. In so doing, he also contends that his trial counsel had a conflict of interest in that he failed to investigate and take pictures, failed to effectively cross-examine the victim, and believed Williams was guilty from the start. Because there was no prosecutorial misconduct, his constitutional protection against double jeopardy was not violated, the judicial bias contention is moot, and trial counsel was not ineffective, Williams' appellate counsel was not ineffective for failing to raise these claims. Williams' contention regarding his sentence was not raised below and is thus waived. Accordingly, we affirm.

I. BACKGROUND.

¶2 In October 1998, Williams was charged with child enticement and first-degree sexual assault of a child "for luring and fondling his eleven-year-old neighbor in a common stairway of their building." After a jury trial, Williams was convicted of child enticement and first-degree sexual assault of a child, in violation of WIS. STAT. §§ 948.07(1) and 948.02(1) (1997-98), and was subsequently sentenced on January 6, 1999. On May 6, 1999, his postconviction counsel filed a motion for resentencing. The motion was granted, and, after the matter was transferred to the Honorable Jeffrey A. Wagner, Williams was sentenced to two consecutive terms of imprisonment consisting of ten years for the first count and twenty-seven years for the second count. On direct appeal, this court affirmed on March 13, 2001. Williams filed a postconviction motion for a new trial, pursuant to WIS. STAT. § 974.06, that was subsequently denied. He now appeals from the order denying his postconviction motion.²

II. ANALYSIS.

A. Williams was not denied due process, as there was no prosecutorial misconduct.

¶3 Williams argues that he was denied due process when the prosecutor: (1) "kept telling the jury that the alleged victim didn't lie"; (2) "kept appealing to the jury['s] common sense"; and (3) "repeatedly vouched for the allege[d] victim, and she knew this was wrong." Williams further argues that the prosecutor "made some improper comments about the defense witnesses."

¶4 "The determination of whether prosecutorial misconduct occurred and whether such conduct requires a new trial is within the trial court's discretion." State v. Lettice, 205 Wis. 2d 347, 352, 556 N.W.2d 376 (Ct. App. 1996). An appellate court will sustain a discretionary act if "the trial court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis. 2d 400, 415, 320 N.W.2d 175 (1982). However, "[i]f the misconduct `poisons the entire atmosphere of the trial,' it violates due process." Lettice, 205 Wis. 2d at 352 (quoting United States v. Pirovolos, 844 F.2d 415, 425 (7th Cir. 1988)). Reversal on this basis is drastic and "`should be approached with caution.'" Id. (quoting State v. Ruiz, 118 Wis. 2d 177, 202, 347 N.W.2d 352 (1984)).

¶5 Thus, "[t]he test to be applied when a prosecutor is charged with misconduct for remarks made in argument to the jury is whether those remarks `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498 (Ct. App. 1992) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Trial counsel is also "allowed `considerable latitude,' with discretion ... given to the trial court in determining the propriety of the argument." State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979) (citation omitted). The prosecutor is allowed to comment on and detail the evidence. Id. The prosecutor is also allowed to argue a conclusion from the evidence. See id. Accordingly,

[t]he line between permissible and impermissible argument is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence.

Id. at 454.

¶6 Here, the postconviction court determined that "[c]ommenting on whether a witness has reason to give false testimony is perfectly appropriate." It considered the argument of the prosecutor, and indicated that the prosecutor drew from the evidence and common sense. The postconviction court noted that the jury was instructed to consider the evidence when reaching its verdict, and not the conclusions or opinions of counsel. And finally, after articulating the standard of whether the remarks "so infected the trial with unfairness," the postconviction court determined that the prosecutor did not exceed the scope of evidence and that none of the arguments impacted Williams' due process rights. We agree.

¶7 Williams' contention that the prosecutor improperly: (1) told the jury that the victim did not lie; (2) appealed to the collective common sense of the jury; and (3) "vouched" for the victim even though she "knew this was wrong," does not hold. As noted by the postconviction court, the prosecutor acknowledged that there were some inconsistencies in the victim's testimony regarding the time period before and after the assault, but argued that the witness was consistent regarding the actual assault. She also argued that the victim had "no reason to lie." There does not appear to have been any evidence presented indicating that the victim had any reason to make up the story. The prosecutor was commenting on the evidence, and as noted above, that is not improper.

¶8 Further, regarding the appeal to common sense, "[j]urors are expected to bring commonly known facts and their experiences to bear in arriving at their verdict." State v. Poh, 116 Wis. 2d 510, 518, 343 N.W.2d 108 (1984). "[W]e expect jurors to bring their experiences, philosophies, and common sense to bear in their deliberations." State v. Messelt, 185 Wis. 2d 254, 264, 518 N.W.2d 232 (1994). Thus, so long as the prosecutor's comments do not cross the "line" noted above, appeals to the collective common sense of the jury are proper. Accordingly, as there was no prosecutorial misconduct, Williams was not denied due process.

B. Williams' constitutional protection against double jeopardy was not violated.

¶9 Williams was convicted of child enticement and first-degree sexual assault of a child, in violation of WIS. STAT. §§ 948.07(1) and 948.02(1). He contends that he was convicted in violation of the double jeopardy clause of the United States and Wisconsin Constitutions. See U.S. CONST. amend. V; WI CONST. art. 1, § 8. He contends that his convictions are "not only the same in facts, same in time, but significantly the same in nature."

¶10 "Whether an individual's constitutional right to be free from double jeopardy has been violated is a question of law that this court reviews de novo." State v. Davison, 2003 WI 89, ¶15, ___ Wis. 2d ___, 666 N.W.2d 1. "Whether a multiplicity violation exists in a given case, which requires a determination of legislative intent, is a question of law subject to independent appellate review." Id. The Wisconsin Supreme Court views the relevant provisions of the United States and Wisconsin Constitutions as "identical in scope and purpose[,]" and thus accepts the decisions of the United States Supreme Court as controlling. Id., ¶18. Accordingly, the Wisconsin Supreme Court

read[s] the [United States] Supreme Court as saying that when a defendant is convicted under more than one statute for a single act or transaction and the charges constitute "the same offense" because they are identical in law and fact, the Double Jeopardy Clause prohibits cumulative punishments from these convictions unless the relevant legislative body intended to authorize cumulative punishments.

Id., ¶30. The "same offense" is defined as identical in law and fact. Id., ¶33. Thus, "[a]s a general proposition, different elements of law distinguish one offense from another when different statutes are charged. Different facts distinguish one count from another when the counts are charged under the same statute." Id., ¶41.

¶11 There is a two-step analysis for reviewing multiplicity claims. First, it is necessary to determine whether the offenses are identical in law and fact under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932). Davison, 2003 WI 89, ¶43. In Blockburger, the Supreme Court stated:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 284 U.S. at 304. If, under the Blockburger test, the offenses are identical in fact and law, there is a presumption that the legislature did not intend for the same offense to be punished under two different statutes. Davison, 2003 WI...