State v. Ziebart

• Citation: 2003 WI App 258,268 Wis.2d 468,673 N.W.2d 369
• Decision Date: 18 November 2003
• Docket Number: No. 03-0795.,03-0795.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Timothy M. ZIEBART, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

268 Wis.2d 468

2003 WI App 258

673 N.W.2d 369

STATE of Wisconsin, Plaintiff-Respondent, v. Timothy M. ZIEBART, Defendant-Appellant.¹

No. 03-0795.

Court of Appeals of Wisconsin.

Oral argument October 7, 2003.

Decided November 18, 2003.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert R. Henak of Henak Law Office, S.C., of Milwaukee. There was oral argument by Robert R. Henak.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Alan Lee, assistant attorney general. There was oral argument by Alan Lee.

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

SCHUDSON, J.

¶ 1. Timothy M. Ziebart appeals from the circuit court order partially granting and partially denying his motion for postconviction relief, following his conviction for robbery, kidnapping, impersonating a peace officer, intimidating a victim, and two counts of second-degree sexual assault, all as a habitual criminal.² He argues, under State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), that trial counsel was ineffective for failing to object to what he terms the trial court's "substantially overbroad Whitty instruction ... advis[ing] the jury that it could use evidence of [his] prior bad acts as evidence of non-consent,"³ and that postconviction counsel was ineffective for failing to raise that argument. Ziebart also argues that the circuit court erred in denying his ineffective-assistance-of-counsel claims without holding an evidentiary hearing, and in denying his request for postconviction discovery.

¶ 2. We conclude that Alsteen's limitation of other-acts evidence to prove non-consent is not absolute and, in this case, would not have precluded the court's jury instruction. Therefore, because an objection to the other-acts jury instruction would properly have been overruled, neither trial counsel nor postconviction counsel was ineffective. We also reject Ziebart's challenge to the circuit court's denial of postconviction discovery. Accordingly, we affirm.

I. BACKGROUND

¶ 3. At Ziebart's 1998 jury trial, Mary S. testified that on the evening of August 23, 1997, after spending the day engaging in prostitution, she was coming down from a cocaine high when she and her girlfriend had an altercation with some unknown individuals on National Avenue in Milwaukee. At just that moment, a stranger, later identified as Ziebart, drove up and asked Mary if she needed a ride. She told Ziebart that she "was not dating," but that she could use a ride. Ziebart agreed stating, "I can give a beautiful lady a ride home."

¶ 4. Mary testified that she entered Ziebart's car and offered to pay for the ride. Ziebart declined her offer, drove to a service station, offered to buy Mary a soda, and went inside. When he returned, he stuffed something between the seats. As they neared her home, Mary asked Ziebart to pull over and let her out, but Ziebart reached across her and locked the passenger door. He grabbed Mary's wrist and threatened to kill her if she refused to follow his orders. Ziebart then parked on a secluded street and told Mary to take off her pants and shoes. He removed a box of condoms from between the seats, told Mary he did not want to catch any diseases from a "crack whore," and had sexual intercourse with her. He then ordered her to "suck his fat dick," and continually berated her for being a "crack whore."

¶ 5. Mary testified that Ziebart then drove to a nearby park where she unlocked the door and tried to escape. Ziebart pursued her, tripped her, robbed her, and threatened to kill her. He told Mary he was a St. Francis Police Officer and that she should not call the police because he and his "police brothers" would "get her." He said that he and his fellow officers were "sick of crack whores on the street," and repeatedly told her not to contact police because they would not believe her. Ziebart then fled the scene and Mary screamed for help.

¶ 6. Neighborhood residents testified that they heard Mary's screams and called the police. Cudahy Police Officer Glen Haase testified that when he arrived in the vicinity of the park, he found Mary extremely upset and disheveled, her jeans unbuttoned and open at the waist. When Officer Haase tried to question Mary at the scene, she immediately responded, "He tried to kill me." After being taken to the hospital, Mary provided Officer Haase a detailed account of the events.

¶ 7. At trial, Mary testified that several days after the assault, she received a phone call from a man who said, "Hello, Mary?... This is fat dick." The police traced the call to Ziebart. Cudahy Police Detective Byron McManaman testified that Ziebart denied making the call, denied stopping at the service station, and denied assaulting Mary. After being confronted with the service station's videotape showing him there, however, Ziebart changed his story. He admitted having had intercourse with Mary but, he maintained, he paid Mary twenty dollars for what he considered consensual sex.

¶ 8. Ziebart did not testify, but his statements to the police were introduced at trial.⁴ To rebut Ziebart's claim of consent, the State called Daryl H., who testified that, several years earlier, Ziebart and others had abducted him, sexually assaulted and robbed him. He said that during the assault, Ziebart continually berated and threatened him, and claimed to be a vigilante police officer on a rampage to rid the streets of drug addicts.

¶ 9. The trial court instructed the jury:

Evidence has been received in this case regarding crimes committed by the defendant and conduct of the defendant for which the defendant is not now on trial. Specifically, evidence has been received that the defendant engaged in certain conduct against Daryl ... and was convicted of the crimes of battery, false imprisonment, kidnapping and burglary as a result of that conduct. If you find that this conduct did occur, you should consider it only on the issues of the defendant's motive, intent, preparation or plan and on the issue of non-consent in this case. You may not consider this evidence to conclude that the defendant has a certain character or certain character trait and that the defendant acted in conformity with that trait or character with respect to the offenses charged in this case. The evidence was received on the issues of motive, that is, whether the defendant has a reason to desire the result of the crimes; intent, that is, whether the defendant acted with the state of mind that is required for these offenses; preparation or plan, that is[,] whether such conduct of the defendant is evidence of a design or scheme that is related to or encompasses the commission of the offenses now charged; and non-consent, that is, whether the victim freely consented or did not consent to the alleged acts of the defendant in this case.

You may consider this evidence only for the purposes I have described, giving it the weight you determine it deserves. It is not to be used to conclude that the defendant is a bad person and for that reason is guilty of the offenses charged.

(Emphases added.) The jury convicted Ziebart and the court sentenced him to 148 years in prison.

¶ 10. Ziebart appealed and this court affirmed. See State v. Ziebart, No. 00-1612-CR, unpublished slip op. (WI App May 22, 2001), review denied, 2001 WI 114, 246 Wis. 2d 174, 634 N.W.2d 320. We rejected Ziebart's arguments, one of which challenged the admission of Daryl's testimony. We concluded that the testimony "was offered for permissible purposes." Id., ¶ 14. We explained: "[Daryl's testimony] helped to prove the crimes against Mary by showing that Ziebart had employed a similar plan, and had acted with a similar motive and intent on a previous occasion. Thus, the evidence impeached Ziebart's consent defense." Id. (emphasis added).

¶ 11. Ziebart acknowledges that he "is bound by this Court's conclusion on his direct appeal that the other acts evidence was admissible to show plan, motive or intent," but he argues that "the trial court's theory, expressed in the `limiting instruction,' that such evidence also is admissible to show non-consent is squarely at odds with Alsteen." Ziebart further contends that, although we concluded that "the evidence impeached Ziebart's consent defense," our decision "did not address whether the evidence was properly admissible on the issue of non-consent, and neither the defense nor the State argued admission of the evidence on that ground."<sup>5</sup> ¶ 12. Thus, Ziebart asserts that "the issue is whether reversal is required because, even assuming that the `other acts' evidence was properly admitted on the grounds found by this Court, the trial court's `limiting' instruction permitted, and indeed encouraged, the jury to use that evidence for what [Alsteen] has recognized to be an improper purpose, proof of non-consent."

II. DISCUSSION

A. Jury Instruction

¶ 13. Ziebart first offers his argument in the context of claiming that trial counsel was ineffective for failing to object to the instruction permitting the jury to consider Daryl's testimony on the issue of "whether the victim freely consented or did not consent to the alleged acts of the defendant in this case." We reject his argument.

¶ 14. The standards governing claims of ineffective assistance of counsel have been repeated many times and need not be detailed here. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). Suffice it to say, however, that a defendant claiming ineffective assistance must establish both deficient performance and prejudice, see Strickland, 466 U.S. at 687, and a claim predicated on a failure to challenge a correct trial court ruling cannot establish either. See State v. Wheat, 2002 WI App 153, ¶ 14, 256 Wis. 2d 270, 647 N.W.2d 441 (counsel's failure to present legal challenge is not deficient performance if challenge...