State v. ReedState v. Reed
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- Wedemeyer
¶ 1. Cornelius R. Reed appeals from a judgment entered after a jury convicted him of operating a vehicle without the owner‘s consent as party to a crime, and possession of a firearm by a felon as party to a crime (and as a habitual criminal), contrary to
I. BACKGROUND
¶ 2. On March 19, 2000, at 5115 West Capitol Drive in Milwaukee, Wisconsin, London Hickman told police that, as she was returning to her car, two men approached her, one of whom was later identified as Reed. Reed flashed a silver-colored handgun and demanded that she give him her money and the car keys to her 1998 Lincoln Navigator. When she did so, the men stole her vehicle and drove away.
¶ 3. Approximately thirty minutes later, police located the Navigator. Reed, who was driving, abandoned the vehicle and fled from police. A police officer observed Reed drop a silver pistol on the sidewalk, which was later recovered. They also observed Reed
¶ 4. Reed pled not guilty and the case was tried to a jury. Before trial, Reed filed notice of his intent to present an alibi defense. His theory was that a man named “BoBo” actually stole the car from Hickman and then rented it to Reed minutes later, He had three witnesses to present his alibi. The first was Keith Payne, who testified that he saw the carjacking occur, and Reed was not the person who stole the car. The second was Patrick Neeley, who testified that he was a passenger in the stolen vehicle when it was stopped by police. He told the jury that he was walking down the street when BoBo pulled up in a Navigator and asked him if he needed a ride. Neeley got into the back seat because there was another man in the front passenger seat. BoBo drove to 45th Street and Lisbon Avenue, where they encountered Reed. BoBo offered to rent the vehicle to Reed for $40, and Reed accepted. BoBo and the man in the front passenger seat exited the vehicle; Reed got into the driver‘s seat and Neeley got into the front passenger seat. They drove around for a short while and then were pulled over by police. The third witness was Latare Roberts, who testified that BoBo drove up to him in a Navigator and asked him if he
¶ 5. Neeley and Roberts were in custody at the time of the trial, and the defense requested that they be allowed to change into street clothes when they testified. Reed argued that the jury might find the witnesses less credible if they testified in their jail clothes. The trial court denied the request, ruling that it would be inconvenient and create a security risk. At the time of the ruling, the trial court suggested that a limiting instruction could be given with regard to the jail attire. However, at the time the instructions were drafted, the trial court determined that the issue did not “merit[] any further attention from the jury.” Reed was convicted. He filed a postconviction motion, which was denied. He now appeals.
II. DISCUSSION
A. Witnesses in Jail Clothes.
¶ 6. The main issue in this case is whether the trial court erred by denying Reed‘s request to allow two of his alibi witnesses, who were in custody at the time, to change into street clothes instead of having to testify in their jail attire. Although there is no Wisconsin case law that directly addresses the issue, we are guided by one case decided by this court, wherein we noted the consensus among appellate courts is that this issue is one best left to the discretion of the trial court. State v. Brewer, 195 Wis. 2d 295, 301-02 n.2, 536 N.W.2d 406 (Ct. App. 1995).
¶ 7. Accordingly, we conclude that the trial court‘s decision will be reviewed under the erroneous exercise
¶ 8. In reviewing the trial court‘s decision, we conclude that it did not erroneously exercise its discretion in denying Reed‘s request. The trial court denied the request because of the difficulty associated with having the in-custody witnesses brought to the courtroom, but keeping them in separate bullpens to keep them apart. Granting the clothing request would have entailed having the witnesses change clothes in the bullpens, where other in-custody people were waiting. Introducing those items into the bullpens, and allowing the clothing changes would create security risks that outweighed any prejudice to the defendant. The trial court also reasoned that because both of the witnesses had prior convictions which the jury would hear about, seeing them in jail attire would not be overly prejudicial.
¶ 9. The trial court further explained its exercise of discretion and balancing of factors in its written order denying the postconviction motion. After reviewing the bulk of the law on this issue across the country, the trial court reached three general conclusions. First, the case law makes an important distinction between compelling a
defendant
to testify in jail attire and compelling a
witness
to testify in jail attire. The reason for the distinction is that a defendant has certain constitutional rights and is presumed innocent until proven guilty. “[A] state violates a defendant‘s right to due process, and therefore the presumption of innocence, when it requires him to appear at trial in
¶ 10. The second conclusion noted by the trial court is the distinction made between compelling a witness to testify in jail attire versus compelling a witness to testify in shackles, handcuffs, or other restraints. Courts are more concerned about the prejudice that arises from the latter rather than the former. McMannis, 254 S.E.2d at 809-10. The reason is that physical restraints raise a specter of dangerousness and may have a more significant effect on the jury‘s feelings than mere jail attire. Illinois v. Allen, 397 U.S. 337, 344 (1970). Moreover, jail attire says little more than what we already permit juries to know about witnesses— whether the witness has been convicted of a crime.
¶ 11. The third conclusion reached by the trial court is that viewing a witness in jail attire is not prejudicial where the jury is permitted to hear testimony that the person has been incarcerated. United States v. Brooks, 125 F.3d 484, 499 (7th Cir. 1997). The theory is that “[n]o prejudice can result from seeing that which is already known.” Estelle v. Williams, 425 U.S. 501, 507 (1976) (citation omitted).
¶ 12. The trial court reasoned, based on the foregoing, that its decision to compel the alibi witnesses to testify in jail attire was a reasonable one, particularly given the security concerns and the fact that one of the
B. Ineffective Assistance.
¶ 13. Reed next contends his trial counsel was ineffective for failing to request a cautionary instruction relating to the clothing worn by the defense alibi witnesses. We reject his contention.
¶ 14. To sustain a claim of ineffective assistance of counsel, a defendant must show both that counsel‘s performance was deficient and that counsel‘s errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). A court need not address both components of this inquiry if the defendant does not make a sufficient showing on one. Id. at 697.
¶ 15. An attorney‘s performance is not deficient unless he or she made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. To satisfy the prejudice prong, the appellant must demonstrate that counsel‘s deficient performance was “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
¶ 16. Whether counsel‘s actions constituted ineffective assistance is a mixed question of law and fact.
State v. Pitsch,
124 Wis. 2d 628, 633-34, 369 N.W.2d 711
¶ 17. With respect to the “prejudice” component of the test for ineffective assistance of counsel, the defendant must affirmatively prove that the alleged defect in counsel‘s performance actually had an adverse effect on the defense. Strickland, 466 U.S. at 693. The defendant cannot meet his burden by merely showing that the error had some conceivable effect on the outcome. Id. Rather, he “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
¶ 18. We dispose of this claim on the prejudice prong of the ineffective assistance test. Assuming that Reed‘s counsel should have requested a cautionary instruction, we conclude that Reed has failed to demonstrate that the result of the proceedings would have been different. Reed‘s position is that the jury probably assessed less credibility to his alibi witnesses because they testified in jail clothes. He argues that if the jury had been given a cautionary instruction on this issue, it would have afforded the witnesses more credibility and resulted in his acquittal. We cannot agree.
C. Trial Court Failure to Give Cautionary Instruction.
¶ 20. Reed next argues that the trial court should have given a cautionary instruction. He points out that the trial court raised the issue and indicated it would give the limiting instruction, but then failed to do so. We reject this claim.
¶ 21. Like the ineffective assistance claim, even if Reed convinced us that a cautionary instruction should have been given, we conclude that the failure to so charge the jury was harmless error. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985).
¶ 22. Given the other credibility problems associated with these witnesses, plus the strength of the evidence pointing to Reed‘s guilt, there is no reason to
By the Court. — Judgment and order affirmed.
Notes
All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.