State v. Boyd

2011 WI App 25, 797 N.W.2d 546, 331 Wis. 2d 697, 2011 Wisc. App. LEXIS 49
CourtCourt of Appeals of Wisconsin
DecidedJanuary 25, 2011
DocketNo. 2010AP1090-CR
StatusPublished
Cited by8 cases

This text of 2011 WI App 25 (State v. Boyd) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Boyd, 2011 WI App 25, 797 N.W.2d 546, 331 Wis. 2d 697, 2011 Wisc. App. LEXIS 49 (Wis. Ct. App. 2011).

Opinion

FINE, J.

¶ 1. Demetrius M. Boyd appeals a judgment convicting him of twenty crimes (three counts of armed robbery with threat of force as party to a crime and as an habitual criminal, see Wis. Stat. §§ 943.32(2), 939.05, 939.62; driving someone else's car without the owner's consent and while having a dangerous weapon as party to a crime and as an habitual criminal, see Wis. Stat. §§ 943.23(lg), 939.05, 939.62; unlawfully possessing a firearm as a convicted felon, as an habitual criminal, see Wis. Stat. §§ 941.29(2)(a), 939.62; unlawfully possessing a short-barreled shotgun as an habitual criminal, see Wis. Stat. §§ 941.28(2), 939.62; driving someone else's car without the owner's consent as an habitual criminal, see Wis. Stat. §§ 943.23(3), 939.62; ten counts of felony bail jumping as an habitual criminal, see Wis. Stat. §§ 946.49(1)(b), 939.62; battery, see Wis. Stat. § 940.19(1); unlawfully and intentionally pointing a firearm at another person, see Wis. Stat. § 941.20(l)(c); and resisting or obstructing a law enforcement officer, see Wis. Stat. § 946.41(1)). He also appeals the circuit court's denial of his motion for postconviction relief.1 He claims that he is entitled to a [704]*704new trial because: (1). the trial court should have given him a new lawyer when he complained about his trial lawyer; and (2) he contends that his trial lawyer gave him constitutionally deficient representation. He also argues that convicting him on bail-jumping counts based on criminal acts for which he was also convicted violated his double-jeopardy rights. Finally, he asserts that the circuit court should have granted him an evidentiary hearing on the issues he raised in his postconviction motion. We affirm.

I.

¶ 2. The jury convicted Boyd of crimes involving four victims. The jury found that Boyd and two associates robbed Abdel Hussein, Basil Awieus, and Monged Asad with a sawed-off shotgun shortly after 9:00 p.m. on January 3, 2008. The jury also found that Boyd battered Lanita Skinner, the mother of Boyd's son, and threatened her with a shotgun several hours after the January 3 robbery.2

¶ 3. Hussein told the jury that he had just closed the liquor store where he worked and was in the store's parking lot with Awieus, his uncle, and Asad, his cousin, when three men drove into the parking lot in a van, [705]*705jumped from the van, and, armed with a shotgun, took things from their pockets and Hussein's black Nissan Maxima. The testimony of Awieus and Asad was essentially the same, and surveillance tapes of the parking lot substantiated their testimony. None of the men could identify any of the robbers, however, because they wore masks.

¶ 4. Boyd's two accomplices also testified about the robbery, and supported the victims' testimony. One, Dennis Nickelson, told the jury that he, Kenyarie Washington, and Boyd were driving around in the van looking for someone to rob. According to Nickelson, the robbery was Boyd's idea. When they arrived at the store, Boyd gave the shotgun to Nickelson, who held it while Washington told everyone to get on the ground. Washington took Hussein's Maxima, and Nickelson and Boyd went to Nickelson's house. The three of them met up later and drove with Skinner to where Boyd wanted Skinner to rob her sister's boyfriend, which Skinner told the jury was her idea to divert Boyd's attention from her because he had been hitting her. They were in Hussein's Maxima and Boyd was driving. Skinner said that when Boyd became frustrated because she did not get the money, he threatened her with the shotgun, and that she soiled herself from fear. Washington's testimony was similar to that of Nickelson and Skinner.

¶ 5. As luck would have it, a police officer, Michael Vagnini, later saw Hussein's Maxima run through a stop sign, and tried to stop the car. After chasing the Maxima at speeds reaching some eighty miles per hour, Vagnini told the jury that a man jumped from the car while it was still moving, albeit slowly, and, after a foot chase, Vagnini caught him. The man was Boyd. When captured, Boyd had Hussein's credit and debit cards and Hussein's driver's license, and also Asad's check and credit cards.

[706]*706¶ 6. After his arrest, Boyd voluntarily gave the police a DNA sample. A technician employed by the State Crime Laboratory testified that she matched Boyd's sample to DNA found on the Maxima's steering wheel.

¶ 7. Boyd testified and denied all the charges. He told the jury that he was just standing around when Vagnini stopped the Maxima, which he denied driving, and that the officers planted the victims' property on him. He admitted, however, that he had earlier told the police that he was in the Maxima with two other men who gave him the victims' cards, testifying that he told the police "several different stories" about the cards. He also claimed that he was at Skinner's house "an hour of 9:00" the night of January 3. He denied knowing Nickelson. As we have seen, the jury convicted Boyd on all charges except the one alleging that he battered Skinner in December of 2007 and the underlying bail-jumping charge. We now turn to his contentions on appeal.

II.

A. Boyd's request for a new lawyer.

¶ 8. Although, with exceptions not material here, persons have the right to retain counsel of choice, indigent defendants in criminal cases may not select the lawyers who represent them. State v. Jones, 2010 WI 72, ¶¶ 38-42, 46, 326 Wis. 2d 380, 407-410, 412, 797 N.W.2d 378. An indigent defendant does, however, have the right to a lawyer with whom he or she can communicate effectively. Id., 2010 WI 72, ¶ 25, 326 Wis. 2d at 397-398, 797 N.W.2d at 578. When an indigent defendant seeks a new lawyer because of an alleged breakdown in their communication, the trial court must consider two fac[707]*707tors: (1) whether the request for a new lawyer is timely, and (2)" 'whether the alleged conflict between the defendant and the attorney was so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case.'" Ibid., (quoted source omitted). A request for a new lawyer is timely if it is made when the "total lack of communication" becomes evident, even though that might be on the eve of trial. Id., 2010 WI 72, ¶ 30, 326 Wis. 2d at 401-402, _ N.W.2d at _. A trial court has discretion to deny a indigent defendant's request for a new lawyer, and we will uphold the trial court's decision if it " 'examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.'" Id., 2010 WI 72, ¶ 23, 326 Wis. 2d at 397, _ N.W.2d at _ (quoted source omitted). Thus, we must assess " 'the adequacy of the [trial] court's inquiry into the defendant's complaint.'" Id., 2010 WI 72, ¶ 25, 326 Wis. 2d at 397-398, _ N.W.2d at _ (quoted source omitted). Although we review de novo whether the trial court correctly applied the applicable law, see State v. White, 2008 WI App 96, ¶ 9, 312 Wis.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 WI App 25, 797 N.W.2d 546, 331 Wis. 2d 697, 2011 Wisc. App. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boyd-wisctapp-2011.