State v. Winters

• Decision Date: 10 March 2009
• Docket Number: No.: 2008AP910-CR.,: 2008AP910-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ronnie Lee WINTERS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

766 N.W.2d 754

2009 WI App 48

STATE of Wisconsin, Plaintiff-Respondent, v. Ronnie Lee WINTERS, Defendant-Appellant.^†

No.: 2008AP910-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs November 11, 2008.

Opinion Filed March 10, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph J. Sczygelski of Sczygelski Law Firm, LLC, Manitowoc.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, Marguerite M. Moeller, assistant attorney general.

Before FINE, KESSLER and BRENNAN, JJ.

¶ 1 BRENNAN, J

Ronnie Lee Winters appeals from a judgment entered after a jury found him guilty of first-degree reckless homicide, contrary to WIS. STAT. § 940.02(1) (2005-06).¹ He also appeals from an order denying his postconviction motion. Winters raises two claims of error: (1) the trial court erroneously exercised its discretion when it denied Winters's request to testify on his own behalf the day after he had waived that right; and (2) the trial court erred in summarily denying his claim that trial counsel did not provide him with effective assistance; he contends the trial court should have held a Machner² hearing. We hold Winters waived his right to claim on appeal that the trial court erred when it denied his request to revoke the waiver of his right to testify because Winters failed to make an offer of proof at trial or in his postconviction motion. We further hold Winters has not established that an evidentiary hearing was required on his ineffective assistance of counsel claim. Accordingly, we affirm.

BACKGROUND

¶ 2 On January 14, 2006, shortly after midnight, Dennis Robinson, who was the maintenance supervisor of an apartment building located at 1143 North 29th Street in the City of Milwaukee, finished his paperwork and was walking to the building elevator. He heard Maurice Brown, resident of Apartment 106, which was around the corner from the elevator, say "I've got to go." Robinson heard another male voice respond: "I need to talk to you" to which Brown responded "I got to go." As Robinson entered the elevator, he heard the other male voice utter an angry epithet and then heard a loud thud, followed by three bangs as if a beating had just occurred. Robinson, who had reached the parking garage in the elevator decided to go back to the first floor to investigate. He walked past Brown's apartment and the door was closed. Robinson proceeded to the front entrance of the apartment building, where he observed a white female, who he identified as Ann Lane. He then heard a door slam coming from the location of Brown's apartment. Robinson observed a man, later identified as Winters, coming from that direction. Winters was moving quickly, but Robinson approached him and asked: "How are you doing?" Winters mumbled something in response, met up with Ann Lane and the two walked away from the apartment building.

¶ 3 Robinson then went back to Brown's apartment, found the door slightly ajar and observed Brown, who had been physically beaten, lying on the floor just inside the door. Police were called and medical assistance was summoned. Milwaukee Police Officer Paul Helminiak arrived shortly after 12:10 a.m. and Detective Brian Hardrath arrived a short time later. Brown was transported to the hospital where it was determined that he had suffered severe head trauma, brain swelling and facial fractures. He was pronounced dead on January 15, 2006, at 12:40 a.m. due to swelling of the brain.

¶ 4 Detective Shannon Jones was able to question Lane, who stated that she and her boyfriend Winters had gone to Brown's apartment building to buy and smoke cocaine. They then paid Brown $25 to leave his apartment so the two could have sex. Brown agreed. When he returned, Lane asked Brown for $10 back, but Brown refused to give it to her. At this point, she left Brown's apartment and walked toward the front door of the building. She saw Robinson in the hallway. She waited for Winters, who came out a short time later. Winters told Lane that when Brown stated he did not have the $10, Winters "punched him, he staggered, I punched him again and then I looked for the money." Lane indicated that she and Winters then took a bus to North 27th Street.

¶ 5 Winters was arrested and charged with second-degree reckless homicide. He pled not guilty. During a court hearing on August 2, 2006, the prosecutor advised the court that the State had extended a plea offer to Winters which would remain open until 10:00 a.m. on August 4, 2006. If the case was not resolved by plea bargain, the prosecutor intended to file an amended information charging Winters with first-degree reckless homicide.

¶ 6 Winters declined the plea offer and the amended information was filed. The case was tried to a jury September 5-7, 2006. The State presented its case by calling a variety of witnesses, including police officers, and citizen witnesses Robinson, Lane and Dannie Thomas.³ Thomas was a prisoner who had been in the same jail pod with Winters from August 19, 2006 to September 6, 2006. Thomas advised authorities on September 2, 2006 that Winters told him in conversation that he was in jail for "bludgeoning someone to death." Thomas testified at trial to that effect.

¶ 7 On September 6, 2006, the State rested its case. Winters elected to waive his right to testify in his own defense. The court conducted a colloquy to ensure that Winters was waiving his right to testify knowingly, intelligently and voluntarily. Winters told the court that he decided voluntarily to waive his right to testify and that he had discussed this decision with his lawyer.

¶ 8 The court then read a stipulation to the jury regarding the police report on Robinson's testimony. The defense rested and then the State indicated it had no rebuttal. The jury was instructed that they had heard all the evidence. The trial court indicated: "What's left is the closing instructions by the Court and the closing arguments by the attorneys. What we will do then is reconvene tomorrow morning at 9:30."

¶ 9 On September 7, 2006, Winters's trial counsel advised the court that Winters wanted to testify:

Judge, when I got here at 9:30, I was advised that Mr. Winters wanted to testify. He had indicated that to the court staff and I've seen him twice now in the back. I didn't know until I arrived that he wanted to. He's aware we've rested. We are ready for argument, and I've advised him of my position which is not to do that and that it's a bad move, and he is—in essence, he's killing himself. So I've told him that on two occasions and he remains adamant about testifying.

The prosecutor immediately responded that he had released his rebuttal witnesses and did not know whether he could get them back. He stated he had doubts that the witnesses could be retrieved. He also advised the court that he had left at home the extensive cross-examination he had prepared for Winters. The court held proceedings off the record and when it went back on the record, the prosecutor explained that he had relied on Winters's waiver and would be prejudiced if the trial court allowed Winters to revoke his waiver and testify.

¶ 10 Defense counsel then recounted his conversation with Winters about testifying, indicating that Winters clearly stated the day before that he wanted to exercise his constitutional right not to testify. Defense counsel advised that "there is no doubt in my mind that [Winters] didn't want to testify yesterday," but Winters had since changed his mind. The court then ruled that Winters waived his right to testify and allowing him to revoke that waiver would result in prejudice to the State. Accordingly, the trial court denied Winters's request.

¶ 11 Winters then engaged in a direct conversation with the trial court asserting his constitutional right to testify on his own behalf and explained to the court:

I understand that I waived my rights not to get on the stand yesterday and testify, but once I went back to my cell and did my own homework—my paperwork and studied, you know, there was some things that I need the jurors, the court to hear, and it's—like I said before, it's my constitutional right to testify on my behalf.

¶ 12 The trial court indicated it had made its decision. The jury was brought in for closing arguments and instructions. They returned a verdict of guilty. Judgment was entered and Winters was sentenced to twenty-five years, consisting of eighteen years' initial confinement followed by seven years of extended supervision.

¶ 13 In January 2008, Winters filed a postconviction motion asserting that his trial counsel provided ineffective assistance and that the trial court erred in refusing to allow Winters to revoke his waiver of his right to testify. The trial court denied the motion without holding an evidentiary hearing. Winters now appeals.

DISCUSSION

I. Waiver of Right to Testify.

¶ 14 Winters complains that the trial court should have permitted him to revoke his waiver of his right to testify after he changed his mind overnight. He also blames the trial court for not holding a hearing to allow him to provide an offer of proof as to what his testimony would be and whether it would have been prejudicial to the State. We are not convinced.

¶ 15 We note that Winters does not challenge the colloquy wherein he knowingly, voluntarily and intelligently waived his right to testify. There is no dispute that Winters's waiver on September 6, 2006, constituted a valid waiver of his fundamental constitutional right to testify on his own behalf. See State v. Arredondo, 2004 WI App 7, ¶ 11, 269 Wis.2d 369, 674 N.W.2d 647.

¶ 16 The issue Winters presents is whether the trial court should have permitted him to withdraw his waiver on September 7, 2006 when he came to court indicating he changed his mind and wanted to testify. The State points out, however, that Winters's failure to seek an offer of proof at the time...