State v. Velez-Figueroa

1

State of Wisconsin, Plaintiff-Respondent, v. Enrique Velez-Figueroa, Defendant-Appellant.

No. 2021AP2165-CR

Court of Appeals of Wisconsin, District I

May 16, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2021-22).

APPEAL from a judgment and an order of the circuit court for Milwaukee County Cir. Ct. No. 2018CF2154 JEFFREY A. WAGNER and DAVID L. BOROWSKI, Judges. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Enrique Velez-Figueroa appeals a judgment entered following a jury trial convicting him of second-degree sexual assault of a child and child enticement, and an order denying his postconviction motion.^[1] On appeal, Velez-Figueroa contends that he was denied effective assistance of counsel at trial because counsel failed to: (1) object to the physical restraints placed on Velez-Figueroa during trial; (2) object to Velez-Figueroa testifying from the defense table; and (3) move to withdraw. Additionally, Velez-Figueroa contends that the trial court failed to independently inquire into the need for Velez-Figueroa's physical restraints. We conclude that trial counsel did not perform deficiently, and that the record supports the trial court's decision to restrain Velez-Figueroa. Therefore, we affirm.

BACKGROUND

¶2 Velez-Figueroa was charged with one count of second-degree sexual assault of a child and one count of child enticement. According to the criminal complaint, fifteen-year-old L.W would go over to Velez-Figueroa's house and Velez-Figueroa would get L.W. drunk and have penis-to-vagina sexual intercourse with her.

¶3 Relevant to this appeal, on June 3, 2019, prior to the start of trial, trial counsel informed the court that he had tried to communicate with Velez-Figueroa about the evidence and his options, but Velez-Figueroa's only response was that he wanted a signature bond. Trial counsel then stated, "I guess we're going to go to trial," and confirmed that he was prepared to proceed. Velez-Figueroa responded that trial counsel had only met with him on two or three occasions, had not provided him with discovery, and had not prepared for trial. Velez-Figueroa stated on April 30, 2019, that he had previously "fired" trial counsel several times.^[2]

¶4 The trial court stated that trial counsel was "not going to be fired on the day of the trial. So let's bring the jury in." The court noted that Velez-Figueroa previously had two other attorneys withdraw and stated that Velez-Figueroa was "not getting another attorney." The court also warned Velez-Figueroa not to make any outbursts in front of the jury, and if he had something to say he should tell his lawyer.

¶5 Subsequently, throughout the trial, Velez-Figueroa repeatedly acted out in the courtroom and disrupted the court proceedings. Velez-Figueroa talked over everyone, used inappropriate language, and made it difficult for the trial to proceed.

¶6 Due to his behavior, Velez-Figueroa was strapped to a wheelchair, outfitted with a stun belt on his leg, wore handcuffs that were chained to his waist, and wore shackles around his ankles that were attached to the floor. In order to obstruct the jury's view of Velez-Figueroa's restraints, he was seated behind a table that was fitted with a skirt. However, at times, Velez-Figueroa chose to sit with his leg up on the table trying to show the jury the stun belt. He also brought attention to his restraints by yelling about the stun belt in front of the jury. In addition, at one point, according to trial counsel Velez-Figueroa started rubbing the handcuffs on his wrists together to try to make them bleed and then attempted to hold his hands up.

¶7 During the trial, the State called several law enforcement officers and L.W. L.W. testified that she met Velez-Figueroa on Facebook and had gone to his apartment more than once. On one occasion, after visiting a club with Velez-Figueroa, L.W had an alcoholic drink in Velez-Figueroa's car and then went to his apartment. L.W. testified that she could not remember much of what happened that night, and the following morning Velez-Figueroa showed her videos on his phone of the two having sexual intercourse. In support of L.W.'s testimony, the State played portions of the videos and displayed screenshots from some of the videos to the jury.

¶8 After the State rested, Velez-Figueroa told the trial court that he wanted to testify. The court informed Velez-Figueroa that he would not be allowed to testify from the witness stand due to security reasons. As a result, Velez-Figueroa testified from the defense table. Velez-Figueroa denied that he had a sexual relationship with L.W. and denied that he was depicted in the videos played to the jury.

¶9 After the close of evidence, the trial court instructed the jury that Velez-Figueroa wore clothing^[3] and restraints consistent with his custody status and that the jury should not consider his custody status and should decide the case based on the evidence. After approximately thirty-five minutes, the jury found Velez-Figueroa guilty as charged.

¶10 Velez-Figueroa filed a postconviction motion contending that trial counsel was ineffective when counsel failed to: (1) object to the physical restraints on Velez-Figueroa; (2) object to Velez-Figueroa testifying from the defense table; and (3) move to withdraw. In addition, Velez-Figueroa contended that the trial court failed to inquire into the need for Velez-Figueroa's restraints.

¶11 At the Machner hearing, Velez-Figueroa's trial counsel testified.^[4] According to trial counsel, Velez-Figueroa's behavior during trial was the worst client behavior he had experienced in his twenty years of practice. Trial counsel testified that Velez-Figueroa did things to draw attention to himself during the trial, including yelling about the stun belt and using swear words.

¶12 When asked why he did not object to Velez-Figueroa's restraints, trial counsel provided two reasons. First, Velez-Figueroa told him that he was going to "blow up" the trial, that he was going to "snap out,"^[5] and that he was going to "jump" him, so he was concerned that "it would have been a bigger scene … that would have made it look even worse in front of the jury [than] it already did." Second, trial counsel testified that since the sheriff's department felt the restraints were necessary for security reasons, trial counsel did not believe that the trial court would have agreed to remove them.

¶13 When asked about his decision not to object to Velez-Figueroa testifying from the defense table, trial counsel explained that he did not want Velez-Figueroa going up on the stand near the jury or the judge. Trial counsel stated that he was concerned that Velez-Figueroa would try to spit at the judge or jury or would "do something worse than what he was doing at the table to try and act out." Trial counsel also stated that if Velez-Figueroa had testified at the witness stand, court personnel would have had to lift Velez-Figueroa's wheelchair and the jury would have been able to clearly see the restraints.

¶14 Finally, trial counsel testified that, prior to trial, Velez-Figueroa never directly asked him to withdraw as counsel. Trial counsel explained that Velez-Figueroa said that he wanted to hire a private attorney, but did not do so. Further, based on the fact that he was the third attorney and it was a year-old child sexual assault case, trial counsel did not believe that the trial court would have allowed him to withdraw on the day of trial.

¶15 The circuit court denied the postconviction motion. The court found that, "[a]ll of the credible evidence, all of it, is that this defendant did everything he possibly could to 'blow-up' the trial." The court observed that in-custody defendants in Milwaukee are always cuffed to the floor and the restraints would not have been of consequence in the average case due to the table skirt. Likewise the stun belt would have been under his clothing. Velez-Figueroa, however, showed the jury his restraints. The court also found that while trial counsel did not say it directly, it was clear that trial counsel was concerned that Velez-Figueroa was going to harm him.

¶16 The circuit court further found that trial counsel had a strategic reason for Velez-Figueroa not testifying from the witness stand, which was that Velez-Figueroa had been "intentionally difficult, intentionally loud, intentionally abusive and disrespectful [such] that that would not have helped his case." In regards to prejudice, the court stated that the State had a "very strong case" against Velez-Figueroa.

¶17 In addition, the circuit court took judicial notice of the fact that there was no chance that the trial court would have granted a motion to withdraw on the day of the trial given Velez-Figueroa's disruptive behavior and that trial counsel was Velez-Figueroa's third attorney. The court stated that the trial court could have made a better record on the basis for the restraints, but that this did not justify a new trial. This appeal follows. Additional relevant facts are referenced below.

DISCUSSION

I. Ineffective Assistance of Counsel

¶18 On appeal, Velez-Figueroa first renews his argument that his trial attorney was ineffective.

¶19 To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a defendant must show that counsel's performance "'fell below an objective standard of...