¶ 1. Riсhard G. White appeals from a judgment entered on a jury verdict convicting him of armed robbery with threat of force, see Wis. Stat. § 943.32(2), and from the trial court's orders denying his motion for postconviction relief. He claims that the trial court erred in determining that: (1) his trial lawyer did not give him prejudicially deficient representation; and (2) the State's failure to timely turn over the criminal-conviction rеcord of the main prosecution witness was harmless. We reverse.
¶ 2. White was convicted of robbing Dustin John Ehlers on October 12, 2000, when the latter was working the late-night shift in a Milwaukee 7-Eleven convenience store. According to Ehlers, White arrived at the store when he and another clerk, Jennifer Dragan, were smoking in the parking lot. Ehlers entered the store and White followed. Ehlers testifiеd that after they discussed cigars and doughnuts, White forced him to take twenty-two dollars from the cash register by showing Ehlers a small silver automatic gun that White had in his belt underneath his coat. Dragan was outside during all this time.
¶ 3. What Ehlers testified was the robbery part of his interchange with White was recorded by a video camera that was visible by persons in the store, and Ehlers told the jury that he had pointed out the camera to White when White, according to Ehlers, had earlier wanted Ehlers to split a sealed package of cigars. The videotape shows the two of them separated by a counter on which White had placed what appears to be a bag of doughnuts. They talked, and Ehlers took money from the cash register and gave it to White. White then left. No gun is visiblе on the videotape. Although White's defense was that Ehlers supplied him frequently with marijuana and gave him the money to make up for a "short" in a sale two days earlier, Ehlers denied either knowing White or having seen him before that night.
¶ 4. White testified that Ehlers sold him marijuana some nine or ten times, the last time on October 10, 2000, when he bought marijuana for his sister's birthday party from Ehlers at the 7-Eleven and pаid $325 for one-half pound. According to White, he and the others at the party noticed that there was less than
A. I asked Dustin. I mean, so I tell him, "How are we going to settle this that you came up short on the marijuana?"
Q. And what does he say?
A. "No," he said, "Man, he says, you know what? All right, you know, this is how we are going to do this. Look here. This is all that is right here. You can take this. I'm through messing with you." You know. "Don't call me, don't page me no more." And that was that.
Both White's sister, Kenyetta White, and White's cousin, Kenyon Devol Johnson, who were also at the party, testified that White had purchased marijuana for the party and that it was "short."
¶ 5. As noted, the jury convicted White of armed robbery. The trial court sentenced him to a thirty-year term of imprisonment, with twenty years of initial confinement and ten years of extended supervision. In his motion for postconviction reliеf, White claimed that his lawyer should have called both Sonny and Dragan as witnesses, and that the State should have revealed before the trial that Ehlers was, when he testified against White, on probation under a deferred-judgment of conviction for possessing marijuana as party to a crime, see Wis. Stat. §§ 961.41(3g)(b), 939.05, 961.47, entered by the circuit court of Richland County.
¶ 7. Dragan averred in her affidavit, as material here, that although when White entered the store on October 12 it was her "responsibility to attend to this customer, Dustin said he would take care of it"; "[l]ater, [White] walked out of the store, smiled and said 'hi' to me as he walked out [to] the parking lot"; and she was aware that Ehlers "was stealing from the store." White also claimed that his trial lawyer should have sought jury instructions on lesser-included crimes of armed robbery, and faulted his lawyer for not consulting him.
¶ 8. The trial court denied White's motion for postconviction relief in a written decision. It ruled that neither Dragan's assertion that Ehlers had stolen from the store nor Ehlers's probationary status during White's trial was relevant, and that although some of the other matters to which Sonny and Dragan would have testified were relevant, that evidence "could not have deflected the force of the rest of the evidence in the State's case, or shored up the obvious weaknesses in the theory of the defense." The trial court also concluded, after holding a hearing under
State v. Machner,
II.
¶ 10. Every criminal defendant has a Sixth Amendment right to the effective assistance of counsel,
Strickland v. Washington,
¶ 11. Our review of a trial court's resolution of an ineffective-assistance-of-counsel claim presents mixed questions of law and fact.
Johnson,
¶ 12. This case, contrary to the trial court's view, was close. There were only two witnesses to the critical transaction — White and Ehlers. Additionally, the videotape, which we have studied, was, again contrary to the trial court's view, hardly conclusive — the tape revealed actions that were consistent with both stories. Thus, we agree with White that the trial's reliability was undermined because the jury was not able to assess the following evidence.
See Strickland,
¶ 13. Although White asserts that his trial lawyer should have introduced into evidence a number of things, we focus only on those that would have been admissible.
1. Dragan's averment that Ehlers "was stealing from the store."
¶ 14. There are threе hurdles that evidence of a person's other acts must clear: (1) the evidence must be "relevant," Wis. Stat. Rules 904.01 & 904.02; (2) the evidence must not be excluded by Wis. Stat. Rule 904.04(2); and (3) the "probative value" of the evidence must not be "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by the considerations of undue delay, waste of time, or needless presentation of cumulative evidence," Wis. Stat. Rule 904.03.
See State v. Sullivan,
¶ 15. The trial court determined that Dragan's assertion that Ehlers stole from his 7-Eleven employer would not have been admissible because, although it "might have lent some credence to the defense theory that Mr. Ehlers took money out of the till voluntarily to repay a drug debt," it was "too vague to be probative." Specifically, the trial court faulted Dragan's affidavit for not providing "sufficient specificity to the nature of his thefts — what he stole or how he stole it — to enable a jury to conclude from her observations that what is shown on the tape is theft [by Ehlers] as opposed to a robbery." We disagree.
¶ 16. First, Ehlers started to work at the 7-Eleven store in early January of 2000, and left at the end of February of 2001. Thus, his stealing from the 7-Eleven store would not have been too distant from the October 12 incident.
See Sullivan,
¶ 17. Second, in conjunction with Wis. Stat. Rule 904.06, which recognizes that "the habit of a person ... whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the
2. White's demeanor and Ehlers's following White into the store.
¶ 18. As the trial court recognized, Dragan's observation that Ehlers volunteered to serve White supported White's contention that he and Ehlers knew one another before that evening. Additionally, as the trial court also recognized, White's demeanor in saying "hi" to her as they passed each other in the parking lot following the alleged robbery "might have weighed against the conclusion that Mr. White was at the store for malicious purposes." We agree with the trial court, however, that this evidence, by itself, was not sufficiently probative to satisfy the "prejudice" component of an ineffective-assistance-of-counsel claim. Nevertheless, this evidence should be admitted at any retrial.
B. Terrell Sonny's prior dealings with Ehlers.
¶ 19. This aspect has two parts: (1) Sonny's assertion that he purchased marijuana from Ehlers at the 7-Eleven "approximately 3 to 4 times," and (2) White's
1. Ehlers's alleged sales to Sonny.
¶ 20. Evidence that Ehlers sold marijuana to Sonny has to clear the same three Sullivan hurdles as does Dragan's proposed testimony that Ehlers had stolen from his 7-Eleven employer. The trial court recognized that "[w]hether Mr. Ehlers sold marijuana from the 7-Eleven store would be relevant" to bolster White's contention that he had purchased the marijuana for which he paid $325 from Ehlers at the store. We agree. Additionally, the evidence of Ehlers's prior marijuana sales to Sonny would not be excluded by Wis. Stat. Rule 904.04(2) because it goes to Ehlers's "intent" and "opportunity" to use the store as a convenient place to accommodate his marijuana customers. Finally, this evidence, too, went to the core of White's defense: that on October 10, 2000, he bought marijuana from Ehlers and was "shorted." Thus, as with the allegation that Ehlers had stolen from his employer, the probative value of evidence that he used his employer's property as a store from which to sell marijuana was not "substantially outweighed" by any of the considerations in Wis. Stat. Rule 904.03.
2. Sonny's introduction of White to Ehlers.
¶ 21. This evidence also went to the heart of both White's contention that he knew Ehlers before the October 12 incident, and, also, to contradict Ehlers's testimony that he had never seen White before October
C. Ehlers's probationary status during White's trial.
¶ 22. Prior to White's trial, his lawyer asked the State to disclose "the criminal record ... of any prosecution witness." Ehlers was placed on probation for two years under a deferred-judgment of conviction in March of 2001. One year later, he was removed from probation "supervision" by an amended judgment but remained on probation under the deferred judgment, which according to the terms of the amended judgment remained "affirmed. . . [i]n all other respects." The prosecution never disclosed to White Ehlers's deferred-judgment probationary status when he testified against White.
2
Although White also frames the probationary-status matter in terms of whether his trial lawyer was ineffective for not discovering Ehlers's status on his own, we analyze the matter in the context of the prosecutor's responsibilities under Wis. Stat. § 971.23(1).
See Gross,
¶ 23. Under Wis. Stat. § 971.23(l)(f), a prosecutor must, upon request, disclose to the defense "[t]he crimi
¶ 24. The trial court held that Ehlers's defеrred-judgment probationary status was not relevant because White disclosed to the jury that Ehlers had been convicted of a crime. The trial court explained: "The mere fact that he was on probation would not give the jury a reason to doubt his credibility, certainly not any more
¶ 25. A witness's probationary status is relevant because it and the fеar of possible revocation are pertinent to the material issue of whether the witness has "ulterior motives" to shape his or her testimony.
Davis v. Alaska,
III.
¶ 26. White is entitled to a new trial.
By the Court. — Judgment and orders reversed.
Notes
Wisconsin Stat. Rule 904.04(2) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
It is not clear from the appellate record whether the State disclosed the fact of Ehlers's conviction, as opposed to Ehlers's status. Ehlers admitted on cross-examination that he had previously been convicted of one crime, and it is not apparent whether this refers to the Richland County matter or another. Under Wis. Stat. § 961.47, a person is not eligible for deferral if he or she has been previously convicted of a drug crime.