State v. Small
State v. Small
Opinion of the Court
¶ 1. Amos Small appeals the judgment
entered on a jury verdict convicting him of armed
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.
¶ 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
A. Right to a public trial.
¶ 8. The Sixth Amendment to the United States Constitution guarantees "a public trial" to every criminal defendant.
¶ 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.
THE COURT: Sir, you are now banned from this trial. You will not come back. You are forbidden from coming into this courtroom.
Anything else, Mr. [prosecutor]?
[The Prosecutor]: No, sir.
[The Defense Lawyer]: If I may, Judge.
[The Prosecutor]: Sorry, I know what the other thing was. [The witness]'s stepfather also indicated that people in the gallery while she was testifying were making hand gestures to the effect, oh, that's baloney or that's not true, whatever she was saying.
The trial court then warned the spectators that if it saw "any reaction to anything that happens in this courtroom, if you have any contact whatsoever with any of the witnesses, you'll be subject to arrest and banned from this courtroom just like the gentleman that I ordered out of the courtroom already."
[The Defense Lawyer]: Judge, I would object to the banning of the gentleman. I don't think the court has that authority to ban. This is an open trial open to the public. All we have right now is a hearsay statement from —
THE COURT: Do you want me to take testimony? I'll interrupt this trial at 1:30 and we'll take testimony from the witness, her father, anybody else that saw it, and this gentleman.
If that's what you want me to do, I'll do that. Or I will simply make the order and hope that he obeys it based on the representation of [the prosecutor].
Your choice, Mr. [defense lawyer]. You want to think about it over the noon hour and let me know me [sic], that's fine too. Right now the order is he's out of the courtroom based upon the representation [the prosecutor] made to me.
[The Defense Lawyer]: We don't want a delay in the trial.
¶ 11. The trial court handled the situation with aplomb and appropriate caution. First, preventing witness intimidation of both those who have already testified and those who have not yet testified ensures three of the four reasons underlying the right to a public trial that Ndina adopted: (a) fairness of the trial; (b) encouraging persons to testify; and (c) discouraging fear-based perjury. Smith's trial was open to everyone but the man who, according to what we have in the Record, had implicitly threatened the witness. Further, the trial court's order was no broader than necessary to protect
¶ 12. Small has not even alleged that the exclusion from the trial of the man who allegedly approached the witness deprived him of a fair trial, and by no stretch of the imagination did the trial court's exclusion of that person come anywhere near justifying imposing a per se rule here that would force a do-over. See id., 2009 WI 21, ¶ 48 n.23, 315 Wis. 2d at 681 n.23, 761 N.W.2d at 625 n.23 (Cases "hold that a closure may be viewed as trivial and that, under some circumstances, a closure may be so trivial as not to violate the Sixth Amendment even if the closure is unjustified.") (emphasis in original). Thus, in an ineffective-assistance-of-counsel context, Small was not prejudiced by his lawyer's decision to reject the trial court's offer to hold an evidentiary hearing before cementing its order to exclude the man.
B. Police officer's testimony.
¶ 13. As we have seen, when the gunman walked into the furniture store, the co-owner yelled " 'Gun. Gun.'" to alert his brother. The co-owner testified that Small responded " 'No. No. No.'" During the testimony of Milwaukee police officer Richard Litwin, the jury saw and heard part of a surveillance video that covered those moments. Apparently the sound was not terribly
Q. Are you able to tell ■— Are you able to tell us what Mr. Small says based on your repeated listening after [the co-owner] says gun, gun?
A. Yes.
Q. What is it?
A. No, no, there is no gun."
The prosecutor played that segment for the jury four times, and Litwin interjected a correction:
A. To be honest with you, to me it sounds like he says at this point no, no, what's going on in here. But again, I was privy to watching this 50 to 100 times so I don't know if I documented that it was at this exact time but to me, right now, it sounds a little different.
Q. It doesn't sound like gun at this point, does it?
A. I think [the co-owner] is saying gun, gun, but I believe Amos Small says something slightly different here.
Q. So you would agree with me that as you listen to this video, the audio can be difficult unless someone is shouting, it's difficult to understand what they are saying?
A. Yes.
Small's trial lawyer did not object to any of this. Thus, we consider the issue in an ineffective-assistance-of-counsel context. See State v. Carprue, 2004 WI 111, ¶ 47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 41. Small contends that his lawyer was ineffective because he did
¶ 14. First, Wis. Stat. Rule 907.01, permitted the officer to give his opinion because it was "rationally based" on his "perception." Rule 907.01 provides:
If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are all of the following:
(1) Rationally based on the perception of the witness.
(2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
(3) Not based on scientific, technical, or other specialized knowledge within the scope of a witness under s. 907.02(1).
Wisconsin Stat. Rule 907.02(1) reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.[5 ]
¶ 16. Second, as noted, this issue is presented to us in an ineffective-assistance-of-counsel context. Small has not shown how, under any conceivable view of the circumstances here, he was prejudiced by Litwin's testimony, especially because the jury heard the audio four times, and the co-owner testified what he heard Small say. Moreover, Small has not even alleged that a sophisticated technical analysis would reveal that any of the versions of what he said in the store were not essentially accurate. He has not, therefore, even come close to showing Strickland prejudice, or even that his trial lawyer was deficient in not objecting to Litwin's testimony.
C. Alleged hearsay.
¶ 17. Small also claims that an officer's recitation at the trial of the number that Truss gave to the police some two months before the furniture-store robbery was inadmissible hearsay. Small's trial lawyer did not object, however, and a sustained objection would have permitted the State to prove Truss's phone number in other ways (such as, perhaps, subpoenaing telephone-company records).
By the Court.—Judgment and order affirmed.
The Honorable Dennis R. Cimpl presided over Amos Small's trial.
The Honorable Michael D. Goulee denied Small's motion for postconviction relief.
The Sixth Amendment reads in full:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Article I, § 7 reads in full:
In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
These rules were modified by 2011 Wis. Act 2, §§ 33, 34, & 34m. The effective date of these provisions in criminal cases is unclear because 2011 Wis. Act 2, § 45(5) seems to fix the effective date for civil cases only, saying that the rules "first
We thus disagree with the State's assertion that the phone number was not introduced for its "truth," and was not, therefore, "hearsay." See Wis. Stat. Rule 908.01(3) (defining "hearsay" as an out-of-court declaration "offered in evidence to prove the
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent v. Amos L. Small
- Cited By
- 8 cases
- Status
- Published