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Counsel – Challenge to Effectiveness – Machner Hearing

State v. William Martin, 2011AP2168, District 1, 5/8/12

court of appeals decision (not recommended for publication); pro se; case activity; prior history: unpublished decision (2007AP1293-CR)

Because the record conclusively demonstrated that Martin wasn’t entitled to relief, State v. Love, 2005 WI 116, ¶26, 284 Wis. 2d 111, 700 N.W.2d 62, the circuit court properly denied without a hearing his claim that postconviction counsel was ineffective (for failing to argue appellate counsel’s ineffectiveness in several respects). Grounds raised by Martin include the following:

¶7        Martin first complains that his trial lawyer should have objected to the lesser-included instruction.  A lesser-included instruction should be given when there are reasonable grounds in the evidence for acquittal of the greater charge and conviction of the lesser charge even when a defendant objects to the instruction.  See State v. Moua, 215 Wis. 2d 511, 519, 573 N.W.2d 202, 205 (Ct. App. 1997).  Here, Martin was charged with armed robbery.  Robbery is a lesser included offense of armed robbery.  The trial court found the evidence supported the lesser-included charge because Martin used a toy gun, and, therefore the jury could have reasonably found that he was not “armed.”  Any objection to the lesser-included instruction would have been overruled; therefore failing to object was not prejudicial.  See Strickland, 466 U.S.at 694.

¶8        Martin also claims that the State violated his due process rights by making the lesser-included request.  We disagree.  “When a defendant is charged with a crime he is automatically put on notice that he is subject to an alternative conviction of any lesser included crime[.]” Dunn v. State, 55 Wis. 2d 192, 197, 197 N.W.2d 749, 752 (1972).

¶17      Martin contends that the trial court was biased against him and that this issue should have been raised by his postconviction lawyer.  Martin says the following rulings and comments show trial court bias: …

¶18      A trial court is obligated to recuse itself if it is biased against a defendant.  See Wis. Stat. § 757.19.  The examples that Martin lists, however, do not show judicial bias.  Several of the allegedly biased statements are either proper evidentiary rulings or comments made to keep order in the courtroom.  The trial court’s evidentiary rulings here do not show bias.  Further, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”  Liteky v. United States, 510 U.S. 540, 555 (1994).  None of Martin’s cited examples “display a deep-seated favoritism.”  See ibid.  Further, the trial court’s sentencing comments do not show bias.  A sentencing court may take into account the credibility of the defendant and acquittals when determining a sentence.  See State v. Arrendondo, 2004 WI App 7, ¶¶53–55, 269 Wis. 2d 369, 404–405, 674 N.W.2d 647, 663 (acquittals); State v. Tiepelman, 2006 WI 66, ¶36, 291 Wis. 2d 179, 199, 717 N.W.2d 1, 11 (credibility).

The remaining issues are too mundane to recite in any detail:

  • Instruction on possession of recently stolen property didn’t invade jury’s province, ¶9;
  • Martin didn’t show how failure to test certain items would have impacted outcome, ¶¶10-11;
  • Curative instruction presumptively eliminated harm from prosecutorial misstatement of burden of proof during closing argument, ¶12;
  • Claim that witness lied was speculative, Martin at most showing testimonial inconsistencies of the type paradigmatically for jury resolution, ¶¶13-14;
  • Juror’s glancing, incidental contact with prosecutor outside the courtroom wasn’t prejudicial, ¶¶15-16.
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