State v. Small

2013 WI App 117, 839 N.W.2d 160, 351 Wis. 2d 46, 2013 WL 4734056, 2013 Wisc. App. LEXIS 723
CourtCourt of Appeals of Wisconsin
DecidedSeptember 4, 2013
DocketNo. 2012AP2049-CR
StatusPublished
Cited by8 cases

This text of 2013 WI App 117 (State v. Small) 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. Small, 2013 WI App 117, 839 N.W.2d 160, 351 Wis. 2d 46, 2013 WL 4734056, 2013 Wisc. App. LEXIS 723 (Wis. Ct. App. 2013).

Opinion

FINE, J.

¶ 1. Amos Small appeals the judgment

entered on a jury verdict convicting him of armed [50]*50robbery with use of force, see Wis. Stat. § 943.32(2), as party to a crime, see Wis. Stat. § 939.05.1 He also appeals the circuit court's denial of his motion for postconviction relief.2 Small complains about three things that, as we will see, implicate his right to a constitutionally effective trial lawyer. He contends that the trial court: (1) deprived him of his right to a public trial; (2) erroneously permitted a police officer to testify as to what he perceived Small said on a surveillance video; and (3) erroneously did not exclude evidence that he claims was inadmissible hearsay. We affirm.

I.

¶ 2. The State accused Small of being a stalking horse for his cousin Brandon Joiner when Joiner used a gun to rob the owners and employees of a furniture store. Small was tried alone.

¶ 3. The store's co-owner told the jury that Small came into the store around 5 p.m. and acted suspiciously. A few minutes later, a masked gunman walked in and took approximately ninety to one-hundred dollars. The co-owner testified that when he saw the armed robber he yelled " 'Gun. Gun.'" to alert his co-owner brother, and that Small responded " 'No. No. No.'" The gunman also took a cell phone from one of the store's employees.

¶ 4. Police ultimately focused on Joiner as the gunman, and there was no dispute at Small's trial that Joiner was the armed robber who took the money and the employee's cell phone. Smart police work connected Joiner to the robbery.

[51]*51¶ 5. Some two months before the robbery, police had stopped a car in which Joiner was a passenger. The driver, Lamar Truss, gave his phone number to the police. A police officer testified that he got "a document" from the store employee whose cell phone the gunman took that "show[ed] the phone numbers called on her phone" after the furniture-store robbery. The officer discovered that the stolen phone had dialed Truss's phone number after the robbery. Further, a cell phone the police found in a car that Joiner drove had called the employee's stolen phone. The contact list on Small's cell phone had two of Joiner's phone numbers. Joiner's mother testified that Small was her nephew and that Joiner and Small would see each other often.

¶ 6. We now turn to Small's contentions on this appeal.

II.

¶ 7. Small's appellate claims largely implicate his right to a constitutionally effective trial lawyer. To establish constitutionally ineffective legal representation, a defendant must show: (1) deficient representation; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient representation, a defendant must point to specific acts or omissions by the lawyer that are "outside the wide range of professionally competent assistance." Id., 466 U.S. at 690. To prove prejudice, a defendant must demonstrate that the lawyer's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. Id., 466 U.S. at 687. Thus, in order to succeed on the prejudice aspect of the Strickland analysis, "[t]he defendant must show that there is a reasonable probability that, but for [52]*52counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694. This is not, however, "an outcome-determinative test. In decisions following Strickland, the Supreme Court has reaffirmed that the touchstone of the prejudice component is 'whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.'" State v. Smith, 207 Wis. 2d 258, 276, 558 N.W.2d 379, 386 (1997) (citations and quoted source omitted). We need not address both aspects of the Strickland test if the defendant does not make a sufficient showing on one, see Strickland, 466 U.S. at 697, and we decide de novo the legal issues underlying an assertion that a lawyer was constitutionally ineffective, see State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845, 848 (1990).

A. Right to a public trial.

¶ 8. The Sixth Amendment to the United States Constitution guarantees "a public trial" to every criminal defendant.3 The Sixth Amendment is binding on the states through the Constitution's Fourteenth Amendment. Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 379 [53]*53(1979). Article I, § 7 of the Wisconsin Constitution also guarantees a public trial for every criminal defendant.4 See also State v. Ndina, 2009 WI 21, ¶¶ 41-42, 315 Wis. 2d 653, 676-677, 761 N.W.2d 612, 623. Not every exclusion of a member of the public, however, violates a defendant's right to a public trial. Id., 2009 WI 21, ¶ 48 & n.23, 315 Wis. 2d at 681-682 & n.23, 761 N.W.2d at 625-626 & n.23. "The Supreme Court has described four values furthered by the Sixth Amendment guarantee of a public trial: (1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury." Id., 2009 WI 21, ¶ 49, 315 Wis. 2d at 682-683, 761 N.W.2d at 626 (internal quotation marks and quoted sources omitted). Wisconsin has not yet decided whether, as with many rights the deprivation of which could have been cured if called to the trial court's attention, see State v. Huebner, 2000 WI 59, ¶ 10, 235 Wis. 2d 486, 492, 611 N.W.2d 727, 730 ("Issues that are not preserved at the circuit court, even alleged constitutional errors, generally will not be considered on appeal.") (constitutionality of six-person juries), the right to a public trial may be forfeited if the defendant does not object timely, see Ndina, 2009 WI 21, ¶ 38, 315 Wis. 2d at 674-675, 761 N.W.2d at 622 (postponing for another day whether the public-trial right can be [54]*54waived or forfeited). With this background, we now turn to what happened in Small's trial.

¶ 9. The trial was fully public except that on the second day, the trial court excluded a man whom the State asserted had implicitly threatened a witness—one of Small's friends who testified that Joiner and Small were cousins. The witness worked for the Milwaukee Police Department as an aide, and was in court with her stepfather, a Milwaukee police officer. After the jury left, the State told the trial court that the witness reported to him that the man approached her in the hallway after she had testified and "told her words to the effect people should keep their mouth shut." The State said that the witness's stepfather also heard what the man said. The trial court reacted immediately.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 WI App 117, 839 N.W.2d 160, 351 Wis. 2d 46, 2013 WL 4734056, 2013 Wisc. App. LEXIS 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-small-wisctapp-2013.