State v. Kwesi B. Amonoo, 2011AP566, District 1, 1/24/12
court of appeals decision (not recommended for publication); for Amonoo: Robert N. Meyeroff; case activity
Amonoo fails to show that trial counsel provided ineffective assistance with respect to pretrial identification procedure (context: “sufficient reason” to overcome serial litigation bar following direct appeal):
¶15 Amonoo contends that of all the persons pictured in the photo array, he was the only one wearing a jacket. This is prejudicial, Amonoo argues, because the police report detailing the shooting indicates that Nimox stated the shooter was wearing a jacket. We disagree. The record, which does not contain the array, does not contain facts which tend to suggest the array was unduly suggestive. In fact, three of the seven witnesses to the shooting did not even identify Amonoo from the photo array. Eyewitnesses Williams,[7] Andres Torres and Dennis Maldonado did not identify Amonoo in the photo array. Further, there was no consistency among those eyewitnesses who identified Amonoo from the photo array and those who identified Amonoo in a line-up. While neither Torres nor Maldonado identified Amonoo from the photo array, both identified Amonoo in a line-up. And, while eyewitness Richard Alvarado selected Amonoo from the photo array, he did not select Amonoo from a line-up. These facts strongly suggest that the array was not unduly suggestive, even if Amonoo was the only one wearing a jacket. Because Amonoo has not demonstrated that he was prejudiced by the photo array, we conclude that a motion to suppress the identification based on photo array would not have succeeded. See Berggren, 320 Wis. 2d 209, ¶21.
¶20 A defendant who alleges that his or her attorney was ineffective because the attorney did not do something must show with specificity what the attorney should have done, how the results of the trial would have been altered, or at the very least, how the failure made the result either unreliable or fundamentally unfair. State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343 (Ct. App. 1994). Here, Amonoo provides nothing but his own conclusory statements in support of what Williams’s and Murphy’s testimonies would have been at trial. Consequently, Amonoo cannot meet the prejudice prong of the Strickland test as to trial counsel’s effectiveness. See id., 466 U.S. at 694. Because trial counsel was not ineffective for failing to call Williams and Murphy to testify at trial, postconviction counsel was not ineffective for failing to raise this issue.
¶22 A defendant does not have the right to insist that his postconviction attorney raise particular issues. See Evans, 273 Wis. 2d 192, ¶30. Counsel has the duty to determine which issues have merit for appeal. Id. “‘[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [postconviction] counsel be overcome.’” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted). Amonoo has not demonstrated that his additional issues are “‘clearly stronger’” than those pursued. See id. (citation omitted).
¶23 As stated, the record contains no facts telling us why any of the witnesses at issue were not called, nor does the record provide factual support for what any of them would have said. Without such information, an appellate court cannot conclude that there is a reasonable probability that the result of the proceeding would have been different. See Thiel, 264 Wis. 2d 571, ¶20. Nor does the record suggest that Amonoo was prejudiced by the photo array or any other identification. We conclude that Amonoo has not shown that any of the issues he claims postconviction counsel should have raised were obvious and clearly stronger than the issue postconviction counsel actually raised. Moreover, Amonoo provides no affidavits or statements from his postconviction counsel explaining his decision to pursue the jury instruction issue over others. We are not prepared to conclude that postconviction counsel’s decision was a result of ineffective assistance, rather than strategy. The law presumes that postconviction counsel’s decision to raise the particular challenge to trial counsel’s performance on direct review was reasonable. See State v. Harris, 133 Wis. 2d 74, 81, 393 N.W.2d 127 (Ct. App. 1986).
Although unpublished, this decision reflects a significant misunderstanding of Wisconsin post-conviction procedure. Specifically, the circuit court denied the motion without a hearing, in part because the defendant’s factual allegations concerning what the witnesses allegedly would say were contained in the defendant’s brief, his affidavit, and attached police reports rather than in affidavits of the witnesses themselves. The Court of Appeals likewise suggests that affidavits are necessary and that reliance upon a police report of the witnesses’ prior statements is inadequate.
The law is to the contrary. Although adequate allegations must be contained in the motion and supporting documentation, they need not be contained in non-hearsay affidavits. In State v. Brown, 2006 WI 100, 293 Wis.2d 594, 716 N.W.2d 906, for instance, the supreme court unanimously stated: “A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.” Id., ¶ 62.
See also State v. Howell, 296 Wis.2d 380, 722 N.W.2d 567, 2006 WI App 182, ¶ 45, n.14 (expressly rejecting state’s argument that hearsay allegations in counsel’s affidavit are insufficient to require evidentiary hearing on post-conviction motion), rev’d on other grounds, 301 Wis.2d 350, 734 N.W.2d 48, 2007 WI 75 (holding that allegations of motion (including counsel’s hearsay allegations) were adequate to require evidentiary hearing); State v. Basley, 298 Wis.2d 232, 726 N.W.2d 671, 2006 WI App 253, ¶10, n.5 (“As we noted in Howell, the lack of an affidavit from Basley setting forth his assertions as averments does not render Basley’s motion infirm.”); State v. Hampton, 259 Wis.2d 455, 655 N.W.2d 131 (Ct. App. 2002) (reversing and remanding for hearing on post-conviction motion despite dissents comment that necessary factual allegations were contained only in counsel’s hearsay affidavit).
I do not know whether Amonoo’s counsel briefed this point or that applying the correct law on this matter would have changed anything, but it is important that the Court of Appeals not perpetuate misstatements of the applicable law.