STATE of Wisconsin, Plaintiff-Respondent, v. Thomas S. MAYO, Defendant-Appellant-Petitioner.
No. 2004AP1592-CR
Supreme Court of Wisconsin
Decided June 26, 2007
2007 WI 78 | 734 N.W.2d 115
Oral argument February 13, 2007.
¶ 1. N. PATRICK CROOKS, J. This is a review of an unpublished, per curiam decision of the court of appeals1, affirming the decision of the Circuit Court for Racine County, Judge Richard J. Kreul presiding, which entered a judgment of conviction against Thomas S. Mayo (Mayo) and denied Mayo‘s postconviction motion for a new trial.
¶ 2. In his petition for review, Mayo asks this court to determine whether the prosecutor‘s alleged improper comments during Mayo‘s trial warrant a new trial, either as plain error or in the interest of justice, despite the fact that defense counsel failed to object to such comments. Mayo further asks this court to determine whether a new trial is warranted, because of hearsay testimony given by the State of Wisconsin‘s (State‘s) witnesses concerning out-of-court statements of the complaining witness, Clarence Price (Price). Additionally, Mayo asks this court to determine whether his trial counsel rendered ineffective assistance by, among other things, failing to conduct an independent investigation, and by failing to obtain and use the transcript of Price‘s sworn testimony at the preliminary hearing. Mayo‘s claim of ineffective assistance of counsel overlaps with his other claims before this court.
¶ 3. We hold that, although there was improper prosecutorial argument in the case, such misconduct did not so infect the trial with unfairness as to consti
I
¶ 4. This case involves events that occurred between Mayo and Price on November 15, 16, and 17, 2002. Mayo and Price both have criminal records, and both testified about the incidents that occurred on the dates at issue, but their accounts are substantially different.
¶ 5. According to Price, Mayo robbed him of 35 dollars at gunpoint in Racine, Wisconsin on November
¶ 6. Price testified that, when Mayo asked him for a dollar on the evening of November 16, Price reached into his pocket to get a dollar. Price testified that Mayo pointed a gun at him, robbed him of the 35 dollars he was carrying, and struck him on the back of the head. Price said that Mayo then ran behind some bushes and told Price to walk in the opposite direction. Price testified that the robbery occurred in the driveway of his friend Jarrell, and that Price went into Jarrell‘s house and called his mother to inform her of the incident. Price testified that he then walked two blocks to another friend‘s house and called 911. Officer Dan Langendorf (Officer Langendorf) promptly responded to the call, at which time Price informed him of the encounter with Mayo.
¶ 7. Mayo testified that he was introduced to Price on the evening of November 15, 2002, by Price‘s uncle. Mayo stated that he encountered Price on the street the next evening, November 16, and purchased cocaine from Price. Mayo said that he was shorted on the amount of cocaine by Price, and he wanted to reclaim the 35 dollars he paid for the cocaine. Mayo testified that he struck Price in the jaw, then kicked and stomped Price‘s stomach and head while getting his 35 dollars back. Mayo stated that Price sought revenge by concocting a robbery story and reporting it to the police.
¶ 8. Price testified that on November 17, 2002, Mayo confronted him outside a Racine taco restaurant.
¶ 9. On November 17, 2002, Price called 911 to report that he was in the presence of the man who had robbed him the previous night. Sergeant Michael Ackley (Sergeant Ackley) and Officer Daniel Small (Officer Small) arrived at the restaurant soon after the call. Officer Small testified that Mayo was already running before the police arrived, and that he was unsure if Mayo was running because he saw the squad car or for another reason. Sergeant Ackley testified that Mayo began running when they stopped their squad car at the scene.
¶ 10. Officer Small and Sergeant Ackley gave chase. Mayo ran and entered a nearby brick house that was not Mayo‘s residence. Sergeant Ackley testified that he rapped on the door three different times over the course of twenty to forty seconds, announcing that he was a police officer. Mayo finally opened the door.
¶ 11. Sergeant Ackley testified that he was halfway finished with patting down Mayo when Price arrived and, without questioning, pointed at Mayo and explained that he was the man who robbed him. Mayo testified that the police took him back to the restaurant, where Price identified him. According to both Sergeant Ackley and Officer Small, Mayo did not respond to Price‘s accusation. Both officers said that Mayo did not exhibit any apparent injuries. Mayo was arrested for
¶ 12. According to Sergeant Ackley‘s testimony, Mayo told him that he ran from the officers because he had a crack pipe on his person and did not want to get arrested for possession of drug paraphernalia. Mayo testified that, before opening the door for the police, he hid the crack pipe under the linoleum in the front hallway of the house to which he had fled.
¶ 13. At Mayo‘s trial in Racine County Circuit Court, Judge Richard J. Kreul presiding, Mayo and Price were the only two witnesses to testify, specifically, about the confrontation between them. Officer Langendorf testified about responding to the robbery call on November 16, 2002, and about his interview with Price. Sergeant Ackley and Officer Small testified about the arrest of Mayo on November 17, 2002.
¶ 14. During her opening statement and also during the presentation of trial testimony, the prosecutor remarked, and elicited testimony, regarding Mayo‘s silence concerning Price‘s accusation that he was the man who robbed him on November 16, 2002. During her closing arguments, the prosecutor made the following comments about her role as a prosecutor:
The way a criminal case works is police reports are forwarded into the District Attorney‘s Office, we review them, we determine whether there should be a charge or there shouldn‘t be a charge. We have the discretion to do that. The case then is charged, and we have an open file policy, meaning that the defendant and defense attorney can have access to all of the police reports, so the defendant has had access and seen what all the evidence is against him and what the victim has said and what the police have said. He‘s had almost five
months to come up with something to attempt to explain his actions away, and you have now heard what he has come up with, which is something new.
¶ 15. The prosecutor also made the following statement in her closing arguments:
Let‘s look at some of the statements the defendant made while on the stand as opposed to the facts as we know them or things he previously stated....
Well, he [Price] identified him [Mayo] and said that‘s the guy that robbed me. This was within the earshot of the defendant. when Clarence Price said that‘s the guy that robbed me, that Thomas Mayo said nothing....
Prior to him being arrested, if he was an innocent man, why would he say nothing at that point when he has been accused?...
My opinion would be that this was a crime of opportunity. The opportunity presented itself to the defendant and he took it.
¶ 16. Then, during her rebuttal argument, the prosecutor further stated:
Defense counsel has indicated that it‘s my job to put a spin on the evidence to convict the defendant. I described briefly what my job is in the first part of my closing. I look up police reports. I determine whether I believe a person is guilty and whether I think it‘s just. I also have the discretion... to dismiss the charges if I think they‘re unjust, if they didn‘t happen, if it‘s not provable.
¶ 17. The prosecutor then made comments concerning the role of defense counsel, stating that defense counsel‘s job is to “get his client off the hook. That‘s his
¶ 18. When giving the jury instructions, the circuit court made no specific comment on the arguments of the prosecutor, but the court did give the standard instructions that opening statements and closing arguments of counsel are not evidence. See Wis JI-Criminal 50, 160.
¶ 19. On April 9, 2003, a Racine County jury found Mayo guilty of the three crimes with which he was charged: armed robbery with use of force, obstructing an officer, and battery while armed. Mayo was sentenced to serve seven years of initial confinement and eight years of extended supervision.
¶ 20. Mayo filed a postconviction motion seeking a new trial. In his postconviction motion, Mayo claimed that the prosecutor made numerous improper remarks in her opening statement, during trial, and in her closing arguments, and that such remarks warranted a new trial either as plain error or in the interest of justice. Mayo argued that defense counsel‘s failure to object to such remarks constituted ineffective assistance of counsel. Mayo also alleged that his trial counsel was ineffective for failing to object to the hearsay within Officer Langendorf‘s and Price‘s testimony concerning the conversation that took place between Officer Langendorf and Price on November 16, 2002. Mayo further alleged that his trial counsel was ineffective for failing to conduct any investigation, for failing to object when Mayo‘s right to remain silent was infringed upon, and for failing to obtain a copy of the preliminary hearing transcript, so that he could impeach Price with inconsistent preliminary hearing testimony.
¶ 22. In an unpublished opinion, the court of appeals affirmed the circuit court‘s decision on the postconviction motion. The court of appeals concluded that the prosecutor‘s remarks in her opening statement, during trial, and in her closing arguments did not prejudice the defendant, and that the defense attorney was not ineffective for failing to object to the remarks. The court of appeals held that the prosecutor‘s remarks regarding the operation of the district attorney‘s office were common knowledge. The court reasoned that references to “the facts as we know them” and the “crime of opportunity” referenced facts before the jury, not the prosecutor‘s personal opinion. The court of appeals stated that, although the references to a defense attorney‘s role were improper and “deserving of condemnation,” Mayo was not prejudiced by the remarks, because they did not infect the trial with unfairness.
¶ 24. Concerning the hearsay issue, the court of appeals found that the hearsay testimony from Officer Langendorf, as well as Price‘s own testimony, was admissible under the excited utterance exception to hearsay.
¶ 25. Mayo also argued before the court of appeals that his counsel was ineffective, because he failed to corroborate Mayo‘s testimony with the testimony of Argo McMorris (McMorris). Allegedly, McMorris was going to testify that she saw Mayo running and bloodied on November 17, 2002, and that Mayo told her that Price attacked him with a tire iron. Defense counsel testified at the postconviction motion hearing that he chose not to use this testimony in an effort to minimize the November 17 encounter, in favor of emphasizing the November 16 encounter. The court of appeals held that an attorney is not ineffective merely because a sound trial strategy fails. Mayo further argued that his counsel was ineffective because he failed to impeach Price‘s testimony. Although Price did present conflict-
¶ 26. After the court of appeals affirmed the circuit court, Mayo then filed a petition for review, which this court granted.
II
¶ 27. This case presents several issues for our review. We must determine whether Mayo is entitled to a new trial due to plain error or in the interest of justice, including his claim that there were improper comments by the prosecutor during Mayo‘s trial, to which defense counsel failed to object. We also must determine whether the circuit court properly admitted Price‘s out-of-court statements under the excited utterance exception to the hearsay rule. Finally, we must determine whether Mayo‘s trial counsel rendered ineffective assistance of counsel. To resolve these issues, the following standards of review are applicable.
¶ 28. In order to evaluate Mayo‘s claim that he is entitled to a new trial, it is necessary for this court to review the record to determine if a new trial is warranted in the interest of justice or due to plain error. See State v. Davidson, 2000 WI 91, ¶ 87 n.16, 236 Wis. 2d 537, 613 N.W.2d 606.
¶ 29. Under the doctrine of plain error, an appellate court may review error that was otherwise waived by a party‘s failure to object properly or preserve the
¶ 30. Wisconsin courts may also grant a new trial in the interest of justice.
In reviewing the cases in which we have interpreted the scope of our discretionary power to reverse judgments under sec. 751.06, stats., we conclude that the court of appeals, like this court, has broad power of discretionary reversal. This broad statutory authority provides the court of appeals with power to achieve justice in its discretion in the individual case. The first category of cases arises when the real controversy has not been fully tried. Under this first category, it is unnecessary for an appellate court to first conclude that the outcome would be different on retrial. The second class of cases is where for any reason the court concludes that there has been a miscarriage of justice. Under this second category... an appellate court must first make a finding of substantial probability of a different result on retrial.
¶ 31. Regarding the admissibility of the alleged hearsay statements, this court reviews evidentiary rul-
¶ 32. This case also requires us to determine whether Mayo‘s trial counsel rendered ineffective assistance. The issue of whether a person was deprived of the constitutional right to the effective assistance of counsel presents a mixed question of law and fact. State v. Trawitzki, 2001 WI 77, ¶ 19, 244 Wis. 2d 523, 628 N.W.2d 801. The circuit court‘s findings of fact, that is, “the underlying findings of what happened,” will be upheld unless they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985). Whether counsel‘s performance was deficient and prejudicial to his or her client‘s defense is a question of law that we review de novo. Trawitzki, 244 Wis. 2d 523, ¶ 19.
¶ 33. In Strickland, 466 U.S. at 687, the United States Supreme Court set forth a two-part test for determining whether counsel‘s actions constitute ineffective assistance. First, the defendant must demonstrate that counsel‘s performance was deficient. Id.; State v. McDowell, 2004 WI 70, ¶ 49, 272 Wis. 2d 488, 681 N.W.2d 500. Second, the defendant must demonstrate that counsel‘s deficient performance was preju-
dicial to his or her defense. Strickland, 466 U.S. at 687. This requires a showing that counsel‘s errors were “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
III
¶ 34. Mayo argues that the prosecutor engaged in misconduct during her opening statement, closing arguments, and elicitation of testimony, and that such misconduct constituted a denial of his due process rights, warranting a new trial. Mayo asserts that the prosecutor improperly commented on Mayo‘s pre-Miranda silence during the State‘s opening statement and in its case-in-chief. Mayo further asserts that the prosecutor‘s closing arguments did not stem from evidence, and that they were prejudicial.
¶ 35. Mayo argues that it is improper for parties to comment on facts not in evidence. State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196 (Ct. App. 1980). He further argues that the prosecutor stated her personal opinion4 in closing arguments, and that such opinion was improper under
¶ 36. Mayo also asserts that it was improper for the prosecutor to comment on and elicit testimony concerning Mayo‘s pre-Miranda silence on the day of his arrest. Mayo asserts that, by referring to Mayo‘s pre-Miranda silence in its opening statement and case-in-chief, the State violated Mayo‘s rights under the
¶ 37. The State agrees with Mayo that the prosecutor‘s comments about Mayo‘s pre-Miranda silence during closing arguments and during the cross-examination of Mayo were not improper. The State argues that a prosecutor may comment on the evidence, argue from it to a conclusion, and state that the evidence convinces him or her and should convince the jury. Adams, 221 Wis. 2d at 19. The State argues further that the prosecutor did not state her opinion in her closing argument when she stated that “this was crime of opportunity” and that Mayo‘s testimony was contrary
¶ 38. Regarding the prosecutor‘s comments during closing arguments about the roles of the district attorney and defense counsel, the State argues that the prosecutor merely presented information that is common knowledge concerning what the prosecution and defense do. The State argues that such common knowledge, combined with the circuit court‘s instructions that statements and arguments of counsel are not evidence, clarified for the jury that the prosecutor‘s statements and arguments were clearly not to be regarded as evidence.
¶ 39. The State argues that, even if the prosecutor‘s statements and arguments were improper, they were insufficient to warrant a new trial, because statements and arguments must be looked at in the context of the entire trial and that, on balance, Mayo was not prejudiced. See State v. Wolff, 171 Wis. 2d 161, 168, 491 N.W.2d 498 (Ct. App. 1992). The State points out that defense counsel also made improper assertions in his closing argument, stating that it was the prosecutor‘s job to “spin[] the evidence into the way the prosecutor wants you to see it” and analogizing the prosecutor to Saddam Hussein.
¶ 40. At oral argument before this court, the State conceded that the prosecutor‘s remarks regarding Mayo‘s pre-Miranda silence during her opening statement, and during direct examination of the State‘s witnesses, were improper. However, the State argues that even if there was a
¶ 41. The State also conceded in its brief that the prosecutor improperly commented on materials not in evidence, when she stated during closing argument that her job was to examine police reports, to decide whether to file charges, and to decide whether to dismiss charges. However, the State argues that Mayo‘s counsel did not object to the prosecutor‘s comments, and that the comments were not so objectionable as to have offended Mayo‘s right to due process.
¶ 42. While we are satisfied that, although some of the arguments of both the prosecutor and defense counsel were improper, the remarks did not reach a level warranting a new trial based either on plain error or in the interest of justice. Specifically, the prosecutor‘s statements that the role of defense counsel was to “get his client off the hook” and “not to see justice is done but to see that his client was acquitted” were improper, even though they may have been invited by defense counsel‘s remarks about the prosecutor‘s role. Defense counsel‘s remarks in his closing argument analogizing the prosecutor to Saddam Hussein and accusing the prosecutor of “spinning the evidence” were also improper and disparaging. Such disparaging remarks, made by both the prosecutor and defense counsel in this case, did not comport with the rules of ethics and civility that
¶ 43. Although the prosecutor‘s disparaging remarks were improper, when looked at in context of the entire trial, they did not prejudice Mayo. See Wolff, 171 Wis. 2d at 168. When a defendant alleges that a prosecutor‘s statements and arguments constituted misconduct, the test applied is whether the statements “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Davidson, 236 Wis. 2d 537, ¶ 88 (citation omitted). It is improper for parties to comment on facts not in evidence. Albright, 98 Wis. 2d at 676. However, a prosecutor may comment on the evidence, argue to a conclusion from the evidence, and may state that the evidence convinces him or her and should convince the jury. Adams, 221 Wis. 2d at 19. There is a fine distinction between what is and is not permitted concerning the lawyer‘s personal opinion. Even if there are improper statements by a prosecutor, the statements alone will not be cause to overturn a conviction. Rather, the statements must be looked at in context of the entire trial. Wolff, 171 Wis. 2d at 168.
¶ 44. The fact that defense counsel‘s role is to advocate for his client is common knowledge, shared by jurors. Under such circumstances, it is quite unlikely that the prosecutor‘s remarks about the role of defense counsel, and vice versa, had any significant influence over the jury‘s decision here. Furthermore, the circuit court instructed the jury that opening statements and
¶ 45. The prosecutor‘s comment during her closing arguments that Mayo committed a “crime of opportunity” was not purely opinion, but was based on evidence before the jury. The prosecutor explained that there were discrepancies between the police reports and Mayo‘s statements, as well as the discrepancies between Mayo‘s story of a drug deal gone bad and Price‘s story of a robbery. The prosecutor argued to a conclusion from the evidence, as is permitted under Adams, 221 Wis. 2d at 19. The prosecutor also explained the process by which she reviews a file, and decides whether to charge a person with a crime, and she explained that the prosecutor‘s office has an open file policy. These comments provided general information regarding the prosecutorial process, and did not, in this case, give the jury any information that would unfairly influence its decision and “‘infect[] the trial with unfairness. . . .‘” Davidson, 236 Wis. 2d 537, ¶ 88 (citation omitted).
¶ 46. We agree with Mayo‘s position, and the State‘s concession at oral argument, that the prosecutor‘s remarks on Mayo‘s pre-Miranda silence, and the testimony she elicited in that regard, during the State‘s opening statement and case-in-chief, violated Mayo‘s right to remain silent under the
¶ 47. In determining whether a constitutional error is harmless, the inquiry is as follows: ” ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ ” State v. Harvey, 2002 WI 93, ¶ 46, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). This court also has formulated the test for harmless error in alternative wording. Under Chapman v. California, the error is harmless if the beneficiary of the error proves ” ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Anderson, 2006 WI 77, ¶ 114, 291 Wis. 2d 673, 717 N.W.2d 74 (quoting Chapman v. California, 386 U.S. 18, 24 (1967), reh‘g denied, 386 U.S. 987 (1967)).6 While we recognize that this court re-
¶ 48. This court has articulated several factors to aid in harmless error analysis. These factors include the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State‘s case, and the overall strength of the State‘s case. State v. Hale, 2005 WI 7, ¶ 61, 277 Wis. 2d 593, 691 N.W.2d 637.
¶ 49. In the present case, the improper references in the State‘s opening statement and case-in-chief to Mayo‘s pre-Miranda silence were infrequent. The prosecutor‘s references to Mayo‘s pre-Miranda silence in her opening statement and during the State‘s case-in-chief comprise only 7 sentences out of 177 pages of the trial transcript. The infrequency of the references in the context of the entire trial mitigated any possible prejudicial effect on the jury. Brecht, 143 Wis. 2d at 318. Examining the importance of the erroneously admitted evidence and the defense‘s case, Hale, 277 Wis. 2d 593, ¶ 61, we are convinced further that the remarks con-
¶ 50. Mayo‘s decision to testify was not affected by the State‘s use of his pre-Miranda silence. Before jury selection, defense counsel explained to the court that the only witness to testify for the defense would be Mayo. Then, in his opening statement, defense counsel told the jury that Mayo would be testifying.
¶ 51. Defense counsel did not object to the prosecutor‘s statements concerning Mayo‘s pre-Miranda silence during the State‘s opening statement and direct examination of the State‘s witnesses. Furthermore, Mayo testified at trial that he was not silent when Price identified him to police as the alleged robber. It is clear that the defense presented evidence that contradicted the State‘s comments and its line of questioning regarding Mayo‘s pre-Miranda silence. Under the circumstances, we conclude that it is ” ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error’ ” and that reversal is not required. State v. Harvey, 254 Wis. 2d 442, ¶ 46 (quoting Neder, 527 U.S. at 18); see also Chapman, 386 U.S. at 24.
¶ 52. The prosecutor also commented on Mayo‘s pre-Miranda silence during closing arguments and on cross-examination of Mayo. As noted previously, the prosecutor‘s use of Mayo‘s pre-Miranda silence was not improper on these occasions. Pre-Miranda silence may be used (1) to impeach a defendant when he or she testifies or (2) substantively to suggest guilt. Adams, 221 Wis. 2d at 9. Once the defendant testifies, his or her pre-Miranda silence may be used by the prosecutor. By the time of the State‘s closing arguments, Mayo had testified, and his testimony differed substantially from
¶ 53. Mayo also argues that the circuit court erred in allowing Officer Langendorf and Price to testify regarding Price‘s statements to Officer Langendorf. He argues that such testimony was inadmissible hearsay and that, because it was admitted, the jury was able to hear repeatedly Price‘s disputed testimony. The State argues that the testimony was properly admitted under the excited utterance exception to the hearsay rule.
¶ 54. We agree with the State‘s position that Price‘s out-of-court statements were properly admitted under the excited utterance exception to the hearsay rule.
¶ 56. Mayo argues that he received ineffective assistance of counsel in several respects, which sometimes overlap with other claims of error, including the fact that his attorney did not object to the improper remarks of the prosecutor in her opening statement, and in her closing and rebuttal arguments. Mayo also argues that defense counsel was ineffective because he did not object to the hearsay testimony of Officer Langendorf or Price, and because he did not know the law regarding pre-Miranda silence. Mayo further asserts that he is entitled to a new trial in the interest of justice under
¶ 57. Mayo argues that defense counsel was unprepared, as demonstrated by the fact that he did not corroborate Mayo‘s testimony even though he had the possibility to do so through McMorris, that he did not impeach Price‘s testimony because he never ordered a copy of Price‘s testimony at the preliminary hearing, that he admitted that he did no independent investiga-
¶ 58. The State argues that defense counsel was not ineffective, and that any failures to object were strategic decisions. Regarding defense counsel‘s failure to corroborate Mayo‘s testimony with the testimony of McMorris, the State argues that defense counsel, consistent with his testimony at the postconviction motion hearing, chose not to use this testimony in an effort to minimize the November 17, 2002 encounter between Mayo and Price, in favor of emphasizing their November 16, 2002 encounter. The State also argues that defense counsel was not ineffective for failing to impeach Price‘s testimony. The State asserts that, although Price did give conflicting testimony regarding whether he was with a companion on November 17, the failure to impeach did not prejudice Mayo because the jurors still had good reason from the evidence presented to believe Price and to disbelieve Mayo.
¶ 59. However, we are satisfied that defense counsel‘s failure to conduct any independent investigation amounted to deficient performance under the circumstances, but Mayo failed to show that there was a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. There has been no showing of prejudice here. Lawyers have a duty ” ‘to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits. . . .’ ” Pitsch, 124 Wis. 2d at 638 (citation omitted). Defense counsel should have asked Mayo if there were any
¶ 60. The
¶ 61. Under the two-pronged test that underlies the claim of ineffective assistance of counsel, we need not address both the performance and the prejudice elements, if the defendant cannot make a sufficient showing as to one or the other element. State v. Tomlinson, 2001 WI App 212, ¶ 40, 247 Wis. 2d 682, 635 N.W.2d 201. See also State v. Roberson, 2006 WI 80, ¶ 28, 292 Wis. 2d 280, 717 N.W.2d 111 (citation omitted)(“[C]ourts may decide ineffective assistance claims based on prejudice without considering whether the counsel‘s performance was deficient). In State v. Thiel, 2003 WI 111, ¶ 59, 264 Wis. 2d 571, 665 N.W.2d 305
¶ 62. As noted, we are satisfied that, in failing to conduct any independent investigation, defense counsel was deficient. As an example, if defense counsel had fully investigated the case, the defense could have been in a position to present possible corroboration testimony from an additional potential witness, McMorris. McMorris testified at the postconviction motion hearing on April 29, 2004, that she saw Mayo after the alleged altercation between Mayo and Price on November 17, 2002. She testified that Mayo had blood on the palm of his hand, and that Mayo told her that Price had tried to “jump” him and tried to hit him with a tire iron. However, it is important to note that McMorris was not an eyewitness to the altercation between Mayo and Price and, therefore, could not have provided testimony on what actually occurred during such altercation. We cannot speculate as to whether there were other potential witnesses that may have been discovered through an investigation by defense counsel, and what they would have said, since such potential testimony was not presented to the court.
¶ 63. Defense counsel was not deficient, however, for failing to object to the prosecutor‘s improper remarks during closing arguments, the use of pre-Miranda silence, or the hearsay evidence properly admitted as an excited utterance. Defense counsel‘s lack of objections on these matters was found by the circuit court to involve defense strategy, which this court will not now second-guess. Strickland, 466 U.S. at 689.
¶ 64. On balance, we are satisfied, viewing the deficiencies of defense counsel and the incidents of
IV
¶ 65. We hold that, although there was improper prosecutorial argument in this case, such misconduct
¶ 66. We further hold that the circuit court properly admitted testimony concerning Price‘s out-of-court statements to the police, under the excited utterance exception to the hearsay rule.
¶ 67. By the Court.—The decision of the court of appeals is affirmed.
¶ 68. LOUIS B. BUTLER, JR., J. (concurring). A unanimous court concludes that defense counsel‘s failure to conduct any independent investigation amounted to deficient performance under the circumstances. Majority op., ¶¶ 3, 59, 62, 66. See also Chief Justice Abrahamson‘s dissent, ¶¶ 89, 91, 95, 106. At issue is whether the defendant has shown that counsel‘s deficiency prejudiced the defense. Wiggins v. Smith, 539 U.S. 510, 521 (2003). “The defendant must show
¶ 69. Because the defendant has failed to show that a reasonable probability exists that the result of the proceeding would have been different,1 I join the majority opinion. That does not mean that I agree that defendant has not been prejudiced here; he has. His attorney admitted that he did no independent investigation. Potential witnesses have thus been forever lost. Absent any additional witnesses, defendant has consequently failed to meet his requisite burden of showing the level of prejudice needed to overturn the conviction. I write separately because this case illustrates the difficulties this court has in determining whether the defendant can ever show the requisite amount of prejudice necessary to overturn a conviction when a defense attorney fails to investigate the case, and potential evidence favorable to the defense is forever lost.
¶ 70. The United States Supreme Court has recognized that the American Bar Association Standards for Criminal Justice regarding a lawyer‘s duty to investigate provide as follows:
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused‘s admis-
Rompilla v. Beard, 545 U.S. 374, 387 (2005) (quoting 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.)). See also State v. Love, 2005 WI 116, ¶ 40, 284 Wis. 2d 111, 700 N.W.2d 62. Applying that standard, the United States Supreme Court has held counsel‘s performance in a capital sentencing proceeding to be deficient where counsel failed to examine a defendant‘s prior conviction file or transcript of the victim‘s testimony. Rompilla, 545 U.S. at 389-90. Similarly, the Court has held counsel‘s performance to be deficient in a capital sentencing proceeding where counsel, without a strategic basis for the decision, failed to look beyond the presentence investigation report and Department of Social Service records for mitigating evidence. Wiggins, 539 U.S. at 527-28, 532-34.
¶ 71. In both cases, the United States Supreme Court held that counsel‘s deficient performance was also prejudicial. Critical to the majority‘s determination of prejudice in this case is why the United States Supreme Court reached that conclusion.
¶ 72. In Wiggins, the mitigating evidence that counsel failed to investigate was described by the Court as “powerful.” 539 U.S. at 534. Defendant presented postconviction testimony concerning an elaborate social history report a licensed social worker had prepared containing evidence of physical torment, sexual molestation and repeated rape defendant suffered at the hands of his mother and while in the care of a series of foster parents. Id. at 516, 535. The report also documented that he was homeless for a period, and had diminished mental capacities. Id. at 535. The Court concluded that had the jury been able to place the
¶ 73. Similarly, in Rompilla, defense counsel at trial failed to investigate “pretty obvious signs” that defendant had a troubled childhood and suffered from mental illness and alcoholism, relying instead on defendant‘s own description of an unexceptional background. 545 U.S. at 379. Postconviction counsel pointed out that trial counsel never examined school records, juvenile and adult incarceration records, or evidence of a history of alcohol dependence, and failed to examine the court file of defendant‘s prior conviction, which included the transcript of the victim‘s testimony. Id. at 382-83. This latter point the court found dispositive. Id.
¶ 74. The Court concluded that had defense counsel looked at the prior conviction file, “it is uncontested they would have found a range of mitigation leads that no other source had opened up.” Id. at 390. The files contained an evaluation that showed defendant had a history of alcohol abuse, showed indications of schizophrenia and other mental disorders, and was tested at a third-grade level of cognition after nine years of schooling. Id. at 390-91. The file further showed that defendant‘s parents were both chronic alcoholics; that his father had a vicious temper and frequently beat defendant‘s mother; that his parents fought violently, his mother once stabbing his father; and that his father beat him when he was young with leather straps, belts and sticks. Id. at 391-92. The file further showed that the defendant and his brother were locked in a small wire mesh dog pen that was filthy and excrement filled,
¶ 75. The jury never heard this evidence. Id. Postconviction counsel, on the other hand, used this information never seen by trial counsel to do further testing of the defendant. Id. The Court concluded that the undiscovered mitigating evidence might well have influenced the jury‘s appraisal of defendant‘s culpability. Id. at 393.
¶ 76. In both Wiggins and Rompilla, postconviction counsel presented the evidence that would have made a difference in the outcome of the earlier proceeding that was not discovered because trial counsel failed to conduct an adequate investigation. Thus, the Court did not have to speculate as to what the undiscovered evidence might have shown in assessing the prejudice prong of Strickland.
¶ 77. We have similarly held that a postconviction motion in an ineffective assistance of counsel setting must allege material facts that allow a reviewing court to meaningfully assess defendant‘s claims. Love, 284 Wis. 2d 111, ¶ 27. A postconviction motion will be sufficient if it alleges within the four corners of the motion “the five ‘w‘s’ and one ‘h‘; that is, who, what, where, when, why, and how.” Id. (quoting State v. Allen, 2004 WI 106, ¶ 23, 274 Wis. 2d 568, 682 N.W.2d 433). Applying that standard, we concluded that where defense counsel failed to investigate a phone call from the county jail to defendant‘s mother from an identified individual claiming to have knowledge of the robbery defendant was convicted of, those alleged facts, if true, would entitle defendant to relief. Id., ¶¶ 22, 39-42. Our approach is therefore consistent with that which was taken in Wiggins and Rompilla. Postconviction counsel presented the missing evidence that trial counsel failed
to investigate, giving the appellate court the ability to assess the damage done by trial counsel‘s deficient performance. We are simply not in a position to speculate about the existence of witnesses that have not been identified, and what these witnesses might have said if defense counsel had discovered these witnesses by conducting a proper investigation prior to trial. See majority op., ¶ 62.
¶ 78. So what does that leave us with here? As the Chief Justice points out, we have a “he-said-he-said” case. Chief Justice Abrahamson‘s dissent, ¶ 99. The victim testified that he was robbed of 35 dollars at gunpoint by defendant Mayo. Mayo, on the other hand, testified that the victim shorted him in a drug deal gone bad, and that when the victim refused to return Mayo‘s 35-dollar purchase price, Mayo struck, kicked and stomped the victim while getting his money back. Price and Mayo also gave conflicting stories about what had occurred the next day outside a taco restaurant concerning whether the victim and a companion had attacked Mayo with a tire iron. No one other than these two testified. The testimony of additional witnesses who may have seen either of the altercations between Mayo and Price may well have affected the outcome in this “he-said-he-said” case.
¶ 79. Unfortunately, trial counsel did not speak to the victim‘s friend named Jarrell or Jarrell‘s mother, even though the victim went to Jarrell‘s house just after the robbery, as the robbery occurred nearby. Trial counsel never interviewed anyone that might have been at the restaurant the next night when the tire iron incident occurred. Trial counsel admitted that he conducted no independent investigation, did not hire an investigator, and spoke to no potential witnesses other than Mayo.
¶ 80. Appellate counsel was unable to produce any witnesses at the postconviction hearing who could testify about the events surrounding the robbery. While appellate counsel did produce a potential witness, McMorris, concerning the altercation that occurred the night after the robbery, McMorris did not see that altercation, and merely had information provided to her by Mayo as to what he told her that night. Thus, unlike the situations presented in Love, Wiggins and Rompilla, we are left to speculate about whether potential witnesses to the robbery exist and what they might say.
¶ 81. The net effect of trial counsel‘s failure to investigate is that Mayo was ultimately deprived of any opportunity to mount a credible defense. In my view, that amounts to prejudice. Yet I agree with the majority that the prejudice incurred does not meet the standard required for a new trial under Strickland. The result in this case, while legally correct, should disturb us all.
¶ 82. SHIRLEY S. ABRAHAMSON, C.J. (dissenting). This trial was a contest of the credibility of the only two witnesses to the street encounter: the defendant and the complaining witness. This was a classic instance of “he-said-he-said.”
¶ 83. As the prosecutor correctly argued to the jury, “Basically what this case comes down to is credibility. Is Clarence Price [the complaining witness] more credible or is Thomas Mayo [the defendant] more credible?”
¶ 84. The defendant and the complaining witness both testified. They agreed that there was an altercation. They disagreed, however, about what happened during the encounter. The defendant asserted that it was a drug deal gone bad. The complaining witness asserted that it was an unprovoked robbery. Each man
¶ 85. Credibility determinations are for the jury. The problem is that the credibility determinations in the present case were made in a trial awash with errors and improper conduct by the defense counsel and by the prosecuting attorney, as the majority opinion carefully explains.
¶ 86. I agree with the majority opinion that the multiple errors of both the defense counsel and the prosecutor must be viewed cumulatively, that is in the aggregate, to determine whether the errors were “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”1
¶ 87. The majority opinion and the State conclude that the errors and improper conduct were not sufficient to warrant a new trial under any of the three doctrines that protect a fair trial against trial errors: plain error (
¶ 88. The errors the defendant and majority opinion identify can be grouped into three overlapping and interrelated categories: (I) ineffective assistance of defense counsel; (II) improper statements by the prosecutor; and (III) improper admission of hearsay testimony.
¶ 89. The majority opinion concludes that there was deficient defense counsel performance and errone
¶ 90. In contrast to the majority opinion, I conclude that the cumulative, interrelated errors (as identified by the majority opinion) were pervasive and so infected the jury‘s credibility determination that the aggregate errors undermine confidence in the verdict. A new trial is warranted regardless of which test is used and regardless of whether the State or the defendant has the burden of proof of prejudicial error.2
I
¶ 91. The majority opinion concludes that various aspects of defense counsel‘s conduct fell below the objective constitutional standard for effective assistance of counsel in several respects, all of which amount to defense counsel‘s complete failure to conduct any
- (1) Defense counsel failed to conduct any independent investigation and failed to interview any potential witnesses, relying completely and solely on the police reports and defense counsel‘s conversations with the defendant. Majority op., ¶¶ 3, 57, 59, 62.
- (2) Subsumed under defense counsel‘s failure to investigate is the defense counsel‘s failure to obtain the complaining witness‘s sworn testimony at the preliminary hearing, which might have been used to impeach the complaining witness.
- (3) Had defense counsel investigated he would have been in a position to present possible corroboration testimony from an additional witness, McMorris. Majority op., ¶ 62.
¶ 92. The Sixth Amendment right “to have the Assistance of Counsel” is the right to effective assistance of counsel.3 Effective assistance of counsel requires “an adequate investigation of the facts of the case, consideration of viable theories, and development of evidence to support those theories.”4 Since Strickland v. Washington, 466 U.S. 668 (1984), the seminal case on ineffective assistance of counsel, the United States Supreme Court has become more exacting in analyzing investigatory failures.5
¶ 93. The type and intensity of the investigation
¶ 94. This court has approved of and adhered to Standard 4-4.1 of the ABA Standards for Criminal Justice, The Defense Function (approved draft 1971, 2d ed. 1982, 3d ed. 1993), which imposes an unequivocal duty on defense counsel to conduct “a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case....” This duty to investigate exists “regardless of the accused‘s admission or statements to defense counsel of facts constituting guilt or the accused‘s stated desire to plead guilty.” For cases referring to the duty-to-investigate standard with approval, see, e.g., State v. Love, 2005 WI 116, ¶ 40, 284 Wis. 2d 111, 700 N.W.2d 62; State v. Pitsch, 124 Wis. 2d 628, 638, 369 N.W.2d 711
¶ 95. The record in the present case is clear: There was absolutely no investigation on behalf of the defendant. Defense counsel conceded this point. Majority op., ¶ 57. The majority opinion acknowledges this point. Majority op., ¶¶ 3, 57, 59, 62. This deficiency, however, was not a matter of trial strategy. A lawyer cannot make a rational decision about a defense without first investigating. All of defense counsel‘s errors in failing to investigate were clear error.
¶ 96. We now turn to the question whether the defense counsel‘s numerous errors in failing to investigate the case require a new trial. The majority opinion subjected the claims of ineffective assistance of counsel to a cumulative error analysis, examining whether, when taken as a whole, defense counsel‘s deficiencies prejudiced the defendant. Majority op., ¶ 64. I agree with the cumulative error approach; I disagree with the majority‘s conclusion that the defendant was not prejudiced.
¶ 97. In the present case, defense counsel‘s total failure to investigate may be viewed as effectively denying the defendant assistance of counsel. Under this analysis, no prejudice need be shown, and no harmless error test need be applied.8 The defendant should get the relief sought: a new trial.
¶ 99. The State‘s “he-said-he-said” case was weak. Defense counsel‘s failure to investigate affected the entire evidentiary picture and directly and substantially affected the credibility contest between the defendant and the complaining witness. Under the total circumstances of this case, defense counsel‘s deficient performance undermined the reliability of the proceedings. Defense counsel‘s failure to investigate therefore constitutes prejudicial error in the present case.
II
¶ 100. Although the defendant is, in my opinion, entitled to a new trial on the basis of the errors of defense counsel alone, I turn next to discuss the other errors that infected the trial.
¶ 101. In addition to the errors of the defense counsel, the majority opinion concludes that the prosecutor also committed errors. The prosecutor‘s errors are described in the majority opinion as follows:
(1) In her opening statement the prosecutor infringed upon the defendant‘s federal (Fifth Amendment) and state (Art. I, § 8) constitutional right to remain silent by calling attention to the fact that the
defendant remained silent after being accused of robbery. Majority op., ¶¶ 3, 46.10 (2) In questioning the State‘s witnesses during the case-in-chief, the prosecutor repeatedly infringed upon the defendant‘s federal (Fifth Amendment) and state (Art. I, § 8) constitutional right to remain silent by calling attention to the fact that the defendant remained silent after being accused of robbery. Majority op., ¶¶ 3, 46.11
(3) During closing argument, the prosecutor made improper comments regarding the role of defense counsel when she said that it was defense counsel‘s job to “get his client off the hook,” and “not to see justice done but to see that his client was acquitted.” Majority op., ¶¶ 3, 42, 43.
(4) During closing argument, the prosecutor improperly told jurors that her job was to examine police reports, to decide whether to file charges, and to decide whether to dismiss charges if she thought the charges were unjust or untrue. The prosecutor‘s comments can be found at majority op., ¶ 16. The prosecutor‘s reference to her quasi-judicial task of filing charges amounted to the improper discussion by counsel of materials not in evidence and therefore exceeded the scope of proper argument. Majority op., ¶ 41.
¶ 103. In her closing statement the prosecutor painted an ugly portrait of defense counsel relentlessly focused on procuring a “not guilty” verdict at all costs. The logical implication of the prosecutor‘s remarks was don‘t trust defense counsel, don‘t trust the evidence defense counsel offered, and don‘t trust the defendant.
¶ 104. In contrast, the prosecutor presented herself as prosecuting only cases in which the complaining witness offered a reliable rendition of events. The prosecutor wanted the jury to infer that she would not have brought this case if she didn‘t believe the complaining witness and that because the prosecutor believes the complaining witness, the jury should as well.
¶ 105. In short, the prosecutor‘s improper conduct was designed to and did attack the credibility of the defendant and underscored the complaining witness‘s credibility. In a case like the instant one, where the credibility of the defendant and the complaining witness determines guilt, the prosecutor‘s errors were grave indeed.
¶ 106. The prosecutor‘s improper conduct was exacerbated by the defense counsel‘s deficient performance in failing to investigate, in failing to present a corroborating witness, in failing to procure the testimony of the complaining witness at the preliminary examination to use for impeachment purposes, and in failing to object when the prosecutor erred.
¶ 107. When I consider the centrality of the credibility contest and the defense counsel‘s and the
¶ 108. I conclude that under the proper application of the cumulative error test, the multiple errors of the defense counsel and the prosecutor undermine confidence in the outcome of the trial and denied the defendant of his right to a fair trial.
¶ 109. For the reasons set forth, I conclude that a new trial is warranted, and therefore I dissent.
Notes
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
State v. Thiel, 2003 WI 111, ¶ 45, 264 Wis. 2d 571, 665 N.W.2d 305.