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Ineffective assistance, multiplicity claims rejected

State v. Martez C. Fennell, 2017AP2480-CR, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)

Fennell unsuccessfully challenges his convictions for armed robbery and operating a vehicle without the owner’s consent, arguing that the charges are multiplicitous and that trial counsel should have subpoenaed a witness who would have impeached the victim’s identification of him.

The multiplicity question requires determining determines whether the offenses are identical in law and in fact using the “elements-only” test from Blockburger v. United States, 284 U.S. 299 (1932). State v. Ziegler, 2012 WI 73, ¶60, 342 Wis. 2d 256, 816 N.W.2d 238. The armed robbery and operating a vehicle without the owner’s consent charges are not the same in either law or, in this case, in fact:

¶23     The elements of armed robbery are that the defendant took property from the owner, had an intent to steal, threatened imminent use of force to compel acquiescence in the taking or carrying away (“asportation”) of the property, and was armed with a dangerous weapon while committing the robbery. Wis. Stat. §§ 943.32(1)(b) & (2) (2017-18);.. State v. Grady, 93 Wis. 2d 1, 5, 286 N.W.2d 607 (Ct. App. 1979). The elements of taking and driving a vehicle without the owner’s consent are: that the defendant intentionally took a vehicle without the owner’s consent and intentionally drove that vehicle without the owner’s consent. See Wis. Stat. § 943.23(2). The crimes require separate facts to be proven—as the State succinctly stated:

Obviously, one need not take and drive a “vehicle” to commit an armed robbery. The “property” taken in a robbery could be a vehicle, but it could also be anything else possessed by the victim. One can take and drive a vehicle without acting forcibly by threatening the imminent use of force against the owner. One can take and drive a vehicle without using a dangerous weapon. One can take and drive a vehicle without intending to permanently deprive the owner of its possession. These two crimes are, obviously, not the same in law.

¶24     The crimes are also not identical in fact. Here, Fennell not only took and drove A.R.’s vehicle without her consent, but he did so at gunpoint and stole other personal items, including her phone and her purse. Fennell took A.R.’s phone from her hand while brandishing a gun, instructed her to leave all of her belongings in the car, and later indicated that he would not return the items. Fennell’s actions meet the elements of armed robbery and are separate and distinct from his actions of taking A.R.’s car and driving away. Thus, the charges against Fennell were not multiplicitous.

Fennell’s ineffective claim involves trial counsel’s failure to subpoena a police officer who would have testified that A.R., the victim, told him at the crime scene that she didn’t see the robber’s face because she was scared of the gun, something she denied saying when she testified at trial. (¶¶5-8). Assuming trial counsel was deficient, it didn’t prejudice Fennell. During cross-examination, defense counsel read her statement from the officer’s report; while A.R. denied making the statement, counsel pressed her on that denial, so “[t]he jury had an opportunity to assess A.R.’s credibility.” (¶17). Further, A.R. identified Fennell in a photo array and some of A.R.’s personal items were found in Fennell’s grandmother’s home, so there isn’t a reasonable probability that the officer’s testimony would have resulted in a different outcome at trial. (¶18).

Fennell also raises the challenge to the “search for truth” directive in Wisconsin’s reasonable doubt instruction, Wis. J.I.–Criminal 140, an issue that is pending in the supreme court in State v. Trammell. Fennell’s challenge is rejected for the reasons the court of appeals gave in its decision in that case. (¶¶25-30).

Finally, Fennell argues the circuit court erroneously exercised its sentencing discretion by failing to consider Fennell’s individual characteristics or the specific mitigating and aggravating factors in the case. The court of appeals holds otherwise. (¶¶31-34).

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