State v. Fennell

386 Wis.2d 629

927 N.W.2d 924 (Table)

2019 WI App 21

STATE of Wisconsin, Plaintiff-Respondent,

v.Martez C. FENNELL, Defendant-Appellant.^†

Appeal No. 2017AP2480-CR

Court of Appeals of Wisconsin.

DATED AND FILED March 26, 2019

KESSLER, P.J.

¶1 Martez C. Fennell appeals a judgment of conviction, following a jury trial, of one count of armed robbery as a party to a crime and one count of operating a vehicle without the owner’s consent as a party to a crime. Fennell also appeals from the orders denying his postconviction motion for relief and his motion for reconsideration. We affirm.

BACKGROUND

¶2 On August 20, 2014, Fennell was charged with one count of armed robbery, as a party to a crime, and one count of operating a vehicle without the owner’s consent, as a party to a crime. According to the criminal complaint, on June 22, 2014, Milwaukee police were dispatched to the city’s north side to investigate an armed robbery and carjacking. The victim, A.R., told police that she was parking her car when a Dodge Magnum pulled up behind her and two men exited the vehicle and walked towards her car. A.R. tried to back her car up, but one of the men was already at her driver’s side window, armed with a handgun. He instructed A.R. to exit her vehicle and to leave everything inside the car. A.R. then noticed the other man near the passenger side door. A.R. exited the car, leaving behind her purse. As she exited the car, the armed robber took her cell phone from her hand. A.R. ran away and hid.

¶3 The complaint further states that A.R. later called her phone and heard a male voice on the other end. A.R. asked the man why he was answering a stolen phone. He responded, "Yeah, what are you going to do about it?" and hung up. A.R.’s mother also called A.R.’s phone. A male answered. A.R.’s mother asked where the car was and he responded, "It’s with me, Bitch."

¶4 Four days later, police investigated a large amount of stolen property located at the home of Fennell’s grandmother. Several items belonging to A.R. were found.

¶5 An incident report written by Milwaukee Police Officer Paloma Winkelmann, one of the officers dispatched to the crime scene, states that A.R. did not see the armed robber’s face because she "was scared of the gun." The report further states that A.R. described the robber as a black male with a light complexion, weighing approximately 120 pounds and wearing a red t-shirt. On August 15, 2014, A.R. positively identified Fennell in a photo array.

¶6 The matter proceeded to trial where A.R. and Fennell both testified. A.R. described the gun-wielding robber’s physical features, consistent with the description in the criminal complaint, and also identified Fennell in court. The following exchange ensued:

[State]: Okay. When you talked to the officers [immediately after the robbery] ... you gave them a description of this gunman, right?

[A.R.]: Correct.

[State]: Okay. In giving that description, did you say whether or not you could see his face?

[A.R.]: I believe I did, yes.

[State]: And do you believe you told [officers] that you could see his face or that you could not see his face?

[A.R.]: I told him I could see the ... first one on the driver side but not the one on the passenger side.

....

[State]: This guy that’s on your driver’s side with a gun, did you get a good look at his face?

[A.R.]: Yes.

¶7 On cross-examination, defense counsel asked A.R. about her initial statement to Winkelmann:

[Defense Counsel]: [D]o you recall that when the police did come about an hour after the incident one of them was an Officer Jeffrey Emmanuelson, another one was an Officer Monigold, and then there was another one named Winkelmann?

[A.R.]: I don’t recall names. I just know there was about three or four officers that showed up to the scene.

[Defense Counsel]: And they talked to you, right?

[A.R.]: That would be correct.

....

[Defense Counsel]: Do you recall telling those officers this: ... "that [you] did not see his face because [you] [were] scared of the gun." Is that correct?

[A.R.]: No.

[Defense Counsel]: You think the officers took it down wrong?

[A.R.]: Yes, they did.

[Defense Counsel]: Well, that gun was right in your face, right?

[A.R.]: Right, but I still could see the person’s face also.

[Defense Counsel]: So you deny saying to the police what I just quoted about you saying that could not see his face because you were scared about the gun. You want to take that back?

[A.R.]: Yes, I deny that.

(Some formatting altered.)

¶8 On the last day of trial, defense counsel attempted to subpoena Winkelmann, but Winkelmann was not properly served. Defense counsel explained that he did not subpoena Winkelmann earlier because he mistakenly believed that the State planned to subpoena Winkelmann. Winkelmann did not testify, nor was his report introduced into evidence.

¶9 Fennell testified, telling the jury that he did not carjack A.R. and that her personal items were found at his grandmother’s house because other family members with access to the house engaged in criminal activities.

¶10 The jury found Fennell guilty of both charges. Fennell was sentenced to nine years of initial confinement and six years of extended supervision on the armed robbery count, and to a concurrent term of three years of initial confinement and three years of extended supervision on the operating a vehicle without consent charge.

¶11 Fennell filed a postconviction motion for a new trial arguing that: (1) defense counsel was ineffective for failing to subpoena Winkelmann, who Fennell argued could have impeached A.R.’s credibility; (2) the charges against him were multiplicitous and violated constitutional double jeopardy provisions; (3) the jury instructions given on the State’s burden of proof misstated the law; (4) the sentencing court erroneously exercised its discretion when it sentenced Fennell based on inaccurate information; and (5) the interest of justice required a new trial.

¶12 The postconviction court denied the motion without a hearing. This appeal follows. Additional facts will be included as relevant to the discussion.

DISCUSSION

¶13 On appeal, Fennell argues that: (1) the postconviction court erroneously denied his postconviction motion without an evidentiary hearing because counsel rendered ineffective assistance; (2) his convictions are multiplicitous; (3) his convictions are based on WIS JI—CRIMINAL 140, which "impermissibly reduce[s] the State’s burden of proof, confuse[s] the jury, and otherwise violate[s] due process"; (4) the sentencing court erroneously exercised its discretion; and (5) a new trial is warranted in the interest of justice. (Capitalization omitted.) We address each argument in turn.

I. Ineffective Assistance of Counsel

¶14 A defendant claiming ineffective assistance of counsel must show both that his lawyer performed deficiently and that the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). To establish deficient performance, "a defendant must show specific acts or omissions of counsel that were ‘outside the wide range of professionally competent assistance.’ " State v. Nielsen , 2001 WI App 192, ¶12, 247 Wis. 2d 466, 634 N.W.2d 325 (citation omitted). To demonstrate prejudice, a "defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694.

¶15 A defendant who has made factual allegations with sufficient specificity which, if true, would establish both prongs of the Strickland test is entitled to the opportunity to make the necessary record in an evidentiary hearing. See State v. Bentley , 201 Wis. 2d 303, 313-18, 548 N.W.2d 50 (1996).

¶16 Fennell argues that defense counsel was ineffective "in not securing (via [a] properly served subpoena) and not presenting the credibility[ ]impeaching testimony of Officer Winkelmann" because Winkelmann "took A.R.’s statement minutes after the car[ ]jacking, in which A.R. denied having seen the face of the armed robber who took her car, and memorialized that statement in her [r]eport." Because the theory of defense was that Fennell was not the robber, Fennell argues, his case hinged upon A.R.’s credibility and the reliability of her identification.

¶17 Assuming, without deciding, that counsel’s failure to secure Winkelmann as a witness was deficient, we agree with the postconviction court that the deficiency did not prejudice Fennell because the jury still heard A.R.’s statements to Winkelmann. During cross-examination, defense counsel read A.R. a specific statement from Winkelmann’s report which said, "[A.R.] stated she did not see his face because she was scared of the gun." A.R. denied making the statement. When counsel pressed on, A.R. continued to deny her statement to Winkelmann. The jury had an opportunity to assess A.R.’s credibility.

¶18 Even if Winkelmann had testified, the jury still would have heard that A.R. identified Fennell in a photo array and that some of A.R.’s personal items were found in Fennell’s grandmother’s home. There is not a reasonable probability that adding Winkelmann’s testimony would have resulted in a different outcome at trial. The postconviction court did not erroneously deny Fennell’s motion without a hearing.

II. Multiplicitous Charges

¶19 Fennell next argues that the charges against him were multiplicitous, thus violating constitutional double jeopardy provisions.

¶20 "The double jeopardy provisions of the Wisconsin and United States Constitutions prohibit multiplicitous charges. Multiplicity occurs when the State charges more than one count for a single criminal offense." State v. Lock , 2013 WI App 80, ¶32, 348 Wis. 2d 334, 351, 833 N.W.2d 189 (internal citations omitted). "Whether an individual’s constitutional right to be free from double jeopardy has been infringed is a question of law that we review de novo ." Id.

¶21 "We review multiplicity claims according to a well-established two-pronged methodology. Fi...