PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
May 25,
2000
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals.
See
Wis. Stat. §808.10
and Rule 809.62.
No. 99-0812-CR
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
IV
State of Wisconsin,
Plaintiff-Respondent,
v.
William F. Williams,
Defendant-Appellant.
APPEAL from a judgment and an order of the circuit court for Dane County:JACKF.
AULIK and STEVEND. EBERT, Judges.Affirmed.
Before Dykman, P.J., Eich and Deininger, JJ.
¶1. DEININGER,J.William Williams appeals a judgment which convicted him
of disorderly conduct, and an order which denied postconviction relief from the
judgment.1 Williams claims that the
trial court erroneously exercised its discretion in refusing to allow him to enter an
Alford plea,2
thereby depriving him of the benefit of his plea agreement with the State. Williams also
cites as errors the trial court's failure to grant an adjournment to allow him to secure the
presence of a defense witness, and the court's failure to remove a juror for cause. Finally, if
we conclude the trial court did not err, Williams asks us to determine that his trial counsel
provided ineffective representation with respect to the impaneling of the jury, or to grant a
new trial in the interest of justice due to the absence of the defense witness.
¶2. We conclude that the trial court did not err in declining to adjourn the trial,
and that Williams may not now raise as error the court's failure to remove a juror to whom
he did not timely object. We also conclude that Williams's trial counsel was not ineffective
for failing to move to strike the juror for cause, and we decline to exercise our discretionary
reversal authority on account of the missing defense witness. Accordingly, we conclude that
Williams was convicted following an error-free trial, and thus, his claim of error with
respect to the trial court's refusal to accept his tendered Alford plea
comes too late. We therefore affirm Williams's conviction for disorderly conduct and the
order denying postconviction relief.
BACKGROUND
¶3. The State charged Williams with three offenses:disorderly conduct and
violating a domestic abuse injunction, both misdemeanors, and battery to a police officer, a
felony. All three offenses were alleged to have been committed while Williams was a repeat
offender, thereby enhancing the potential penalties Williams faced if convicted of any or all
of the offenses. Williams negotiated a plea agreement with the State which called for him to
plead other than not guilty to the three offenses in return for the State's sentencing
recommendation of not more than two years of imprisonment. Because Williams was also
facing probation revocation proceedings, he opted to tender an
Alford-type plea so as not to be deemed to have admitted his commission
of the new offenses.3 Williams's
counsel informed the court of his intention to enter an Alford plea, to
which the court responded "I won't accept it." Counsel attempted to inform the
court that he thought "there is strong evidence" to support the plea, but he was
interrupted by the following comment from the court:
I don't care. I've had too many bad experiences with
Alford pleas. In fact, I've never had a decent experience with an
Alford plea. I have just made a policy I will not accept one. It's that
simple.
Counsel then informed the court there was therefore no
plea agreement, and the case proceeded to a jury trial.
¶4. On the day of trial, Williams moved for an adjournment so that he could
obtain the presence of Michael Shea, who was alleged to be an alibi witness. The court
denied the request for an adjournment but did issue an arrest warrant for the missing witness.
Police were unable to locate Shea while the trial proceeded, however. During a recess,
defense counsel told the court that he had been misinformed by the sheriff's department
earlier in the week that Shea had been served with a subpoena for the trial date, when in fact
he had not been served. Counsel then provided the following offer of proof as to what
Shea's testimony would be:
[T]hat on the afternoon in question Mr. Williams was with
Mr. Shea at the apartment of this Lori Phillips helping her to move stuff about. And that [an
investigator's report] further goes on to state that Mr. Shea did report to the police, I believe
Officer Troia, that he suspected that the defendant might have stolen a bracelet from him.
That is the essence of the report.
When the court inquired what purpose the testimony
would serve, counsel explained that Williams's presence in another apartment, as opposed to
his wife's apartment where the charged misdemeanors were alleged to have occurred, was in
the nature of an alibi. Williams's counsel acknowledged that he was not sure if he could
establish the specific hour of the day that Shea and the defendant were together, and he later
stipulated that Shea himself would be unable to testify as to a time more specific than
"in the p.m." of the date of the offenses. Shea's presence was not procured
during the course of the trial, but he did appear and give testimony during postconviction
proceedings.
¶5. During voirdire, one prospective juror acknowledged that she had been a
victim of domestic violence. The prosecutor then asked the juror whether there might be
"something about that experience that would make it difficult for you to put that aside
and listen to the witnesses and judge them fairly?" The juror responded, "[i]t
would be very difficult," but she "could try." No follow-up questions were
put to this juror by either counsel or the court, and Williams used a peremptory strike to
remove the juror from the panel. During postconviction proceedings, Williams's counsel
testified that there were two reasons why he neither pursued follow-up questions with the
juror in question nor moved to strike her from the jury. Counsel stated that he
"already had an opinion" that he was going to strike her peremptorily. He
explained that he strongly prefers not to strike jurors for cause if he can avoid doing so
because it tends to cause embarrassment for the juror in question, and that he doesn't want
the remaining jurors to be negatively affected by the challenge. Also, in this case, counsel
stated that he particularly "didn't want the jury to think that I was uncomfortable with
someone who would have been through that type of experience ...."
¶6. The jury found Williams guilty of the two misdemeanor offenses, but the
jurors were unable to reach a verdict on the felony charge of battery to a police officer. The
trial court granted Williams's postconviction motion to set aside the jury's verdict on the
charge that Williams had violated a domestic abuse injunction. The court denied his motions
for relief, however, that were grounded on his counsel's alleged ineffectiveness in failing to
strike the juror, the court's refusal to accept his Alford plea, and the
court's failure to grant his request for a continuance in order to obtain Shea as a witness.
Williams appeals the judgment convicting him of disorderly conduct and the order denying
relief from the conviction.
ANALYSIS
¶7. The threshold issue in this appeal is whether we should reverse Williams's
conviction on account of the trial court's allegedly erroneous refusal to accept his
Alford plea.4
Williams tendered the plea in order to effectuate a plea agreement with the State. He argues
that the trial court's statement that "I have just made a policy" to reject
Alford pleas demonstrates an erroneous exercise of discretion. Williams
also asserts that it "would be very simple" for this court to vacate the conviction
and sentence and "remand the case for further proceedings on all three counts
consistent with the final plea offer that Williams originally attempted to accept." We
disagree.
¶8. Even if we were to determine that the trial court erred in rejecting the
tendered Alford plea, the error would not justify setting aside the results
of Williams's jury trial. This is because any error stemming from a trial court's refusal to
accept an Alford plea, like error in binding over a defendant following a
preliminary hearing, is cured when a defendant receives a fair and error-free trial. See
State v. Webb, 160 Wis.2d 622, 467 N.W.2d 108 (1991).
¶9. The supreme court decided in Webb "that a
conviction resulting from a fair and errorless trial in effect cures any error at the preliminary
hearing," and that "a defendant who claims error occurred at his preliminary
hearing may only obtain relief before trial" by petitioning for leave to appeal the
bindover decision. Id. at 628. The court concluded that reversing a
conviction following a "fair and errorless trial," only to return to the preliminary
hearing stage of the proceedings, would serve very little purpose. The court noted that,
because a jury had found the defendant guilty beyond a reasonable doubt (a verdict which the
defendant in Webb did not challenge), it made no sense to remand for the
purpose of determining whether the State could establish probable cause that he had
committed the offense. See id. at 629-30.
¶10. By the same token, we see little point in reversing Williams's conviction
and remanding for the purpose of requiring the trial court to consider whether the State
possessed "strong evidence" of Williams's guilt, such that he should have been
convicted without a trial, notwithstanding the "protestation of innocence" which
his tendered Alford plea communicates. (See footnote 4.) As the State
notes, if we were to reverse and remand on this ground, the trial court might again elect not
to accept the Alford plea, perhaps making a better record of its reasons
for that decision. In that event, Williams should not be able to obtain a new trial on the
disorderly conduct charge, provided we determine that his first trial was "fair and
errorless." Conversely, if the trial court were to now accept the
Alford plea, Williams would again stand convicted of disorderly conduct.
The only question then remaining would be the appropriate sentence, and Williams does
not argue on appeal that his sentence on the disorderly conduct charge was
excessive or otherwise an erroneous exercise of discretion.
¶11. Thus, it is not clear what purpose would be served by a reversal and
remand for the trial court to reconsider the Alford plea, except that
Williams apparently believes he might fare better on resentencing, and of course, the judicial
and prosecutorial resources expended on the two-day jury trial will have been for naught.
See Webb, 160 Wis.2d at 629. Williams argues, however, that he has
been prejudiced by losing "the opportunity to benefit from accepting the plea
bargain" which the State had offered him. We acknowledge that the supreme court has
recognized the value to the criminal justice system of plea agreements in general, and
Alford pleas in particular. See State v.
Garcia, 192 Wis.2d 845, 856-57, 532 N.W.2d 111 (1995). We also agree with
Williams that, even though the sentencing court would not have been bound to follow the
State's recommendation for a total of no more than two years imprisonment on all three
offenses, such a recommendation would have been a key factor at sentencing, the loss of
which is a detriment to Williams.5
See State v. Smith, 207 Wis.2d 258, 270, 558 N.W.2d 379 (1997).
¶12. Nonetheless, we conclude that a defendant's opportunity to obtain the
benefit of a plea bargain can be adequately protected by requiring a defendant who believes
his tendered plea has been improperly rejected to seek leave for an interlocutory appeal.
Under Wis. Stat. §808.03(2), this court may accept an interlocutory appeal whenever
we determine that to do so would materially advance the termination of the litigation, protect
the petitioner from substantial or irreparable harm, or clarify further proceedings in the
litigation or an issue of general importance in the administration of justice. Also, as the
supreme court noted in Webb, in exercising our discretion whether to
grant interlocutory review, we do so "on the basis of the merits of the case."
See Webb, 160 Wis.2d at 633 n.8. In short, if a defendant
shows this court that a criminal prosecution could be promptly terminated on the basis of an
agreement with the State premised on an Alford plea, that the loss of the
plea bargain would constitute substantial harm to the defendant, and that the record discloses
an apparently arbitrary rejection of the plea, potential grounds for interlocutory review will
have been stated.6
¶13. For the foregoing reasons, we conclude that if Williams was found guilty
following a "fair and errorless" trial, he may not now claim error in the trial
court's rejection of his tendered Alford plea. We must next determine,
therefore, whether Williams was in fact convicted following an errorless trial. If he was, he
is not entitled to relief from his conviction. If his trial was not error-free, however, we
would grant relief for that reason, and not because of any error in the trial court's refusal to
accept his tendered Alford plea.
¶14. Williams's first claim of error relating to his trial is that the trial court
improperly refused to adjourn so that he could obtain the presence of Michael Shea to testify
on his behalf. Williams points out that the State had obtained adjournments of the trial on
two prior occasions, implying that the trial court had shown favoritism by granting the
State's requests and not his. We note, however, that each time the State sought to adjourn
the scheduled trial, it was because a clearly material witness was unavailable. On the first
occasion, Williams's wife, the alleged victim of the two misdemeanor charges, failed to
respond to a subpoena; on the second, the police officer whom Williams allegedly battered
had just given birth. On neither occasion did Williams object to the
adjournment.7
¶15. In any event, the question before us is not whether the trial court
wrongfully granted the State's adjournment requests, but whether the court erred in denying
Williams's. Our review of the record leads us to conclude that the court did not erroneously
exercise its discretion in denying Williams's request to adjourn the trial so that he could
procure Michael Shea as a witness. See Elam v. State, 50 Wis.2d 383,
389-90, 184 N.W.2d 176 (1971) (concluding that whether to grant a defendant's
"motion for a continuance to obtain the attendance of witnesses is addressed to the
discretion of the trial court"). Both parties cite Elam for the three
questions a trial court should address in exercising its discretion. The court should consider
"whether the testimony of the absent witness is material, whether the moving party has
been guilty of any neglect in endeavoring to procure the attendance of the witness, and
whether there is a reasonable expectation that the witness can be located."
Id. at 390. A defendant's failure to make a satisfactory showing on one
or more of the three considerations is grounds for denying his or her motion for a
continuance. See id. at 390-92.
¶16. We conclude that the trial court did not err in determining that Shea's
expected testimony was not material to the issues at trial, and thus, that no adjournment
should be granted to procure his presence. It is true that "[t]estimony which tends to
prove that the accused was at another place at the time the crime was committed, and
therefore could not have been involved, is clearly relevant and material...."
Id. at 390. Williams, however, stipulated at trial that Shea's testimony
would only place Williams in a different apartment sometime on the afternoon of the
offenses, and that Shea would be unable to be more specific with respect to the time of day.
We agree with the trial court's conclusion that "there has been nothing in this record
that this Mr. Shea could give any evidence that had any probative value," and we thus
affirm the court's denial of a continuance.
¶17. Williams also asks, alternatively, that we grant him a new trial under Wis.
Stat. §752.35 because Shea's absence prevented the real controversy from being fully
tried. Section752.35 allows us to reverse a trial court's judgment if we conclude either
(1)the real controversy has not been fully tried, or (2)it is probable that justice has
miscarried. See §752.35. The former may occur when the jury is
precluded from considering "important testimony that bore on an important issue"
in the case. See State v. Hicks, 202 Wis.2d 150, 160, 549 N.W.2d 435
(1996). Williams claims that the jury should have had the opportunity to hear Shea's
testimony regarding Williams's presence in another apartment near the time of the offenses.
Williams points to Shea's testimony at the postconviction hearing tending to establish that
Williams was present in the other apartment about five minutes prior to Williams's contact
with police outside the apartment complex.
¶18. We have concluded that, based on the record before it at the time, the trial
court did not erroneously exercise its discretion in not adjourning the trial to allow Williams
to attempt to locate Shea. We acknowledge that Shea's postconviction testimony is somewhat
more specific regarding when the two had been together in the other apartment than was the
statement he gave to Williams's investigator. Nonetheless, even as given at the
postconviction hearing, Shea's testimony, if believed by the jury, establishes only that
Williams stopped briefly at another apartment shortly before his arrest. Given the imprecise
testimony in the record regarding the duration of Williams's contacts with both his wife and
Shea, and regarding the timing of those contacts with respect to when he encountered the
police officer outside the apartment complex, Shea's testimony falls far short of creating an
alibi for Williams. We thus conclude that it is not "important" testimony, and
we decline to order a new trial under Wis. Stat. §752.35.
¶19. Finally, we address Williams's claims regarding the failure to remove for
cause a juror who said that "it would be very difficult" for her to put aside a past
experience of domestic violence and to "listen to the witnesses and judge them
fairly," but that she "could try" to do so. Williams claims that the trial
court erred by not suasponte following up this response with further questions
and/or removing the juror. He finds support for what he terms the trial judge's
"affirmative duty to insure that all jurors impaneled to hear a case must be fair and
impartial" in Wis. Stat. §805.08(1), which provides that "[t]he court shall
examine on oath each person who is called as a juror to discover whether the juror ... is
aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror
shall be excused." We agree that the trial court ultimately bears the responsibility for
ensuring that a fair and impartial jury is impaneled. We reject, however, the notion that a
party who during voirdire neither requests further questioning nor objects to the seating of a
juror may later allege error in the trial court's failure to act suasponte.
¶20. This court concluded in State v. Brunette, 220 Wis.2d
431, 583 N.W.2d 174 (Ct. App. 1998), that a claim of juror bias is waived if not timely
presented in the trial court. See id. at 440-42. We explained in
Brunette that the requirement for a timely objection in order to preserve a
claim avoids "unnecessary reversals" by allowing the trial court to correct errors,
and that appellate review of a juror bias claim is severely hampered when we are deprived of
"the contemporaneous impressions of the trial court and its reasoning" on a
question of juror bias. See id. This latter point is significant in the
present appeal, inasmuch as Williams claims that the juror exhibited "subjective
bias." The resolution of a claim that a juror is subjectively biased turns in large
measure on the "circuit court's assessment of the individual's honesty and
credibility," and we review a trial court's factual finding regarding subjective juror bias
under the "clearly erroneous" standard. See State v. Faucher,
227 Wis.2d 700, 718, 596 N.W.2d 770 (1999).
¶21. Thus, because Williams failed to raise any concerns regarding the juror in
question during voirdire, we will not entertain his belated claim that the trial court should
have taken further action after the juror responded that she "could try" to set
aside her past experience. Williams may, however, raise his counsel's failure to object or
further question the juror as a claim of ineffective assistance of counsel, and Williams does
so. See Brunette, 220 Wis.2d at 445.
¶22. To prevail on a claim of ineffective assistance of counsel, a defendant
must establish both that his trial counsel's performance was deficient and that this
performance prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). In analyzing an ineffective assistance
claim, this court may choose to address either the "deficient performance"
component or the "prejudice" component first. See id. at 697.
If we determine that the defendant has made an inadequate showing on either component, we
need not address the other. See id. We consider first whether Williams's
counsel performed deficiently by not objecting to or further questioning the juror in question.
As we have noted, counsel testified that he made a tactical decision to forego additional
questioning of this juror, preferring to simply strike her peremptorily, thereby avoiding the
risk of alienating other jurors or giving them the impression that he feared having persons on
the jury who had experienced domestic violence.
¶23. Deficient performance requires a showing that defense counsel's
representation fell below an objective standard of reasonableness. See
id. at 688. A court must review an attorney's performance with great
deference, and the defendant must overcome the strong presumption that counsel acted
reasonably within professional norms. State v. Johnson, 153 Wis.2d 121,
127, 449 N.W.2d 845 (1990). Whether an attorney's actions constitute ineffective assistance
of counsel is a question of mixed fact and law. See id. What the
attorney did or did not do is a question of fact, and the trial court's determination on that
matter will not be overturned unless clearly erroneous. See id. The
ultimate question of whether that conduct constitutes constitutionally deficient representation
is a question of law, however, which this court reviews denovo. See id.
at 128.
¶24. Williams argues that we must conclude his counsel's performance
was deficient because we concluded in State v. Traylor, 170 Wis.2d 393,
399-400, 489 N.W.2d 626 (Ct. App. 1992), that an attorney had performed deficiently when
he failed to strike or further question five potentially biased jurors, and then used all of the
defendant's peremptory strikes to remove four of them from the jury. We note that our
opinion in Traylor contains no mention of what justification, if any, the
defense attorney might have offered for his decisions during voirdire and jury selection.
Here, we have a plausible account by counsel as to why he elected to forego a challenge for
cause in favor of a peremptory strike. Our own review of the voirdire transcript does not
suggest that counsel's tactical decision to so employ one of Williams's five peremptory
strikes impeded counsel's ability to obtain a jury panel that was to his and his client's liking.
That is, unlike in Traylor, where counsel expended the entire complement
of peremptory strikes and was still left with a potentially biased juror, here, there were few
other responses by jurors to any queries from the court or counsel, and the responses given,
except for those of the juror in question, were not such as to suggest bias.
¶25. We thus conclude that Williams has not established that his counsel's
performance was deficient in regard to jury selection. The tactical decision to peremptorily
strike the one juror whose responses suggested bias, instead of posing additional questions to
the juror or moving to strike her for cause, all in order to avoid alienating other jurors or
suggesting to them that the defendant felt he could not be judged fairly by someone who had
experienced domestic violence, was reasonable under the circumstances. Counsel's
performance was well within the "wide range" of conduct that constitutes
professionally competent assistance, especially when viewed from counsel's perspective at the
time, rather than through the potentially distorting prism of hindsight. See
Strickland, 466 U.S. at 689.
CONCLUSION
¶26. For the reasons discussed above, we affirm the judgment of conviction and
the order denying postconviction relief.
By the Court.-Judgment and order affirmed.
Recommended for publication in the official reports.
1 This appeal was originally submitted to one member of this court for decision under Wis.
Stat. §752.31(2)(f) (1997-98). However, the chief judge ordered that the appeal be
decided by a three-judge panel. See Wis. Stat. Rule 809.41(3) (1997-98). All
references to the Wisconsin statutes in this opinion will be to the 1997-98 version unless
otherwise noted.
2 See North Carolina v. Alford, 400 U.S. 25 (1970).
3 Whether Williams's conviction on the basis of an Alford plea would
impact his probation revocation proceedings differently than would a conviction based on a
plea of guilty is not at issue in this appeal. See, e.g., State ex rel. Warren v.
Schwarz, 219 Wis.2d 615, 631-32, 579 N.W.2d 698 (1998).
4 We have recently described an Alford plea as follows:
An Alford plea is a plea in which the
defendant pleads either guilty or no contest, while either maintaining his innocence or not
admitting having committed the crime. See State v. Garcia,
192 Wis.2d 845, 856, 532 N.W.2d 111, 115 (1995); see also State v.
Salentine, 206 Wis.2d 418, 423-25, 557 N.W.2d 439, 441-42 (Ct. App. 1996).
Our supreme court has recognized that an Alford plea is a legally
permitted form of a plea, which a court may in its discretion accept when the court
determines there is strong evidence of actual guilt and the plea is knowing, voluntary and
intelligent. Garcia, 192 Wis.2d at 859-60, 532 N.W.2d at 116. A
defendant has no constitutional right to the acceptance of an Alford plea.
North Carolina v. Alford, 400 U.S. 25, 39 n.12 (1970).
State ex rel. Warren v. Schwarz,
211 Wis.2d 710, 717-18, 566 N.W.2d 173 (Ct. App. 1997), aff'd, 219 Wis.2d
615, 579 N.W.2d 698 (1998).
5 The court sentenced Williams to three years in prison on the repeater-enhanced disorderly
conduct conviction. Although not a part of the present record, the parties have informed us
that the State has recharged Williams with violating a domestic abuse injunction and felony
battery to a peace officer, the two companion charges which were dismissed from this case.
These charges are awaiting trial in the circuit court. If Williams is subsequently convicted of
one or both of these offenses, he could receive additional prison time.
6 It is our impression that Alford pleas are infrequently tendered, and
even more infrequently rejected. Thus, we conclude that this court's workload is unlikely to
be significantly affected by requiring defendants to seek interlocutory review of rejected
Alford pleas. Cf. State v. Webb, 160 Wis.2d 622,
632-33, 467 N.W.2d 108 (1991).
7 With respect to his wife's absence, Williams objected to the court's suggestion that the trial
might proceed by allowing the State to introduce Mrs. Williams's statements as those of an
absent witness. Williams's concerns regarding his "right to confrontation"
factored heavily in the court's decision to grant the State's requested continuance. On the
second occasion, when the police victim was absent, Williams's counsel told the court that
his client was "of course upset that the trial is not going this week," but
acknowledged that he could not say that the court had "any alternative" but to
again adjourn the trial.
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