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Machner Hearing; Mistrial

State v. Sidney Clark, 2010AP790, District 1, 2/23/11

court of appeals decision (not recommended for publication); for Clark: John A. Pray; case activity

Clark can’t show prejudice from the deficient performance he alleges, therefore he isn’t entitled to a Machner hearing on ineffective assistance of counsel.

¶21      A postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel.  See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).  A defendant’s claim that counsel provided ineffective assistance does not, however, automatically trigger a right to a Machner hearing.  See State v. Curtis, 218 Wis. 2d 550, 555 n.3, 582 N.W.2d 409 (Ct. App. 1998).  A trial court may deny a postconviction motion without a hearing “if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief.”  State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.  Whether a motion was sufficiently supported to warrant an evidentiary hearing is a legal issue that we review de novoState v. Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996).

¶28      In summary, we reject Clark’s assertion that his trial counsel’s failure to ask him outright whether he robbed the mini-mart sets forth a claim for ineffective assistance of counsel.  See Allen, 274 Wis. 2d 568, ¶9.  Even without the question, it was clear from Clark’s other testimony that he was denying committing the robbery.  There is not a reasonable probability that Clark’s self-serving testimony that he did not do it could have overcome the strength of Noor’s identification.  See Strickland, 466 U.S. at 694.

Prosecutorial reference to Clark’s homelessness, though violative of the trial court’s protective order, didn’t require mistrial.

¶32      Here, during a sidebar immediately prior to her testimony, the trial court instructed the State not to elicit answers from Riccobono that would reference Clark’s homelessness.  After she took the stand, the State asked Riccobono a question calling for an answer about what Clark said to her—“Did he [Clark] say anything in addition to that?”  Riccobono then answered about what he did—“He at the time of the conversation he was giving me a schedule to fax over to a homeless shelter.”  Clark’s counsel immediately objected, and the court called another sidebar.  Afterwards, back on the record and in the presence of the jury, the trial court properly exercised its discretion by instructing the jury to disregard both the State’s question and Riccobono’s answer.  We presume that juries follow the instructions given to them.  State v. Johnston, 184 Wis. 2d 794, 822, 518 N.W.2d 759 (1994).  And therefore we conclude that the jury disregarded Riccobono’s reference to the homeless shelter.

The trial court’s ruling on a request for mistrial is entitled to great deference, ¶30, citing Haskins v. State, 97 Wis. 2d 408, 419, 294 N.W.2d 25 (1980) (“its decision will be reversed only upon a clear showing of an erroneous exercise of discretion”). Less drastic alternatives, such as curative instructions, are favored, ¶31, citing State v. Bunch, 191 Wis. 2d 501, 512, 529 N.W.2d 923 (Ct. App. 1995).

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