Court: Court of Appeals of Wisconsin; August 7, 2018; Wisconsin; State Appellate Court
Shawn Joseph Brown-Troop appeals his conviction for two counts of armed robbery with the threat of force, asserting ineffective assistance from his trial counsel and claiming the trial court erred in denying his request for a new lawyer on the first day of trial. The appellate court affirms the trial court's decisions, finding no ineffectiveness in counsel's representation and that the court properly exercised its discretion regarding the request for new counsel and a hearing.
On September 25, 2015, a GameStop store in Greenfield was robbed by three masked individuals, one armed with a gun. During the robbery, two robbers coerced an employee, S.B., to open the cash register while another took her boss, E.L., into a back room. The robbers escaped with cash and merchandise, and neither employee was able to identify them.
A nearby restaurant manager noticed a suspicious vehicle and reported it to the police shortly after the robbery occurred. Officer Sean Doonan, responding to the robbery report, found Brown-Troop behind a dumpster near the scene, where he was sweating profusely and had $126 in his pocket. A bus driver, who observed three men fleeing the area, provided descriptions to the police.
Subsequent investigations by Officer Anthony Fitzgerald and his K-9 partner uncovered evidence linked to Brown-Troop, including crumpled cash, a black hooded sweatshirt, and a revolver, with DNA from the sweatshirt matching Brown-Troop's. He was charged with armed robbery, leading to his conviction.
On March 28, 2016, during a pretrial hearing, Brown-Troop requested a new attorney, alleging that his trial counsel had not shared critical evidence, including a robbery video. The State's substitute assistant district attorney stated she had not seen the video in the file. Trial counsel believed Brown-Troop referred to a different video and assured the court he would show the correct one, leading Brown-Troop to withdraw his concerns. However, on the first day of trial, Brown-Troop again sought new counsel, expressing disagreement with his attorney's recommendation to plead guilty and claiming he still had not seen the robbery video. The trial court clarified that it was counsel's role to advise, but Brown-Troop could make his own choices. After a recess for Brown-Troop to view the video with counsel, he did not renew his objection. The trial proceeded, resulting in his conviction on both counts, with concurrent sentences of thirteen years' initial confinement and ten years' extended supervision.
Following his conviction, Brown-Troop filed a postconviction motion for a new trial, asserting multiple instances of ineffective assistance from trial counsel and claiming the trial court erred in denying his request for new representation. The court denied the motion without a hearing. Brown-Troop appealed, and the discussion noted that a hearing on a postconviction motion is necessary only if the movant presents sufficient material facts that could entitle them to relief. The trial court has discretion to deny a hearing if the motion lacks sufficient material facts or if the record shows the defendant is not entitled to relief. The review of the trial court's decisions is limited to the postconviction motion itself.
To succeed in an ineffective assistance of counsel claim, a defendant must demonstrate that their attorney's performance was deficient and that this deficiency caused prejudice. Deficiency involves identifying specific acts or omissions that do not meet the standard of professional competence. Prejudice requires showing a reasonable probability that the outcome would have been different had the errors not occurred, sufficient to undermine confidence in the result. Claims of ineffective assistance involve mixed questions of fact and law, where trial court factual findings are upheld unless clearly erroneous, while the legal conclusion of ineffectiveness is reviewed de novo. A defendant must satisfy both prongs of the ineffective assistance test, and if one prong is insufficiently demonstrated, the other need not be considered. There is a strong presumption that an attorney's conduct is reasonable, and performance does not need to be flawless to be constitutionally adequate.
In the specific case of Brown-Troop, he alleges that trial counsel was ineffective for failing to file a motion to suppress evidence obtained from a warrantless arrest, which he claims was unlawful and lacked probable cause. He contends that had such a motion been filed, it would have succeeded, resulting in the suppression of physical evidence and statements made during and after the arrest. A warrantless arrest is lawful only if supported by probable cause, which is determined based on the totality of the circumstances and requires more than mere suspicion. Probable cause does not require the evidence to meet the standard of proof beyond a reasonable doubt, and when facts are undisputed, the existence of probable cause is assessed as a matter of law.
Probable cause existed to arrest Brown-Troop without a warrant based on the circumstances surrounding an armed robbery and a suspicious vehicle call. Officer Doonan, responding to these calls, connected their timing and location, arriving shortly after both incidents. A restaurant manager reported seeing a man run from the robbery site to a dumpster, leading Doonan to find Brown-Troop behind the dumpster. Brown-Troop argued that probable cause was insufficient due to a lack of knowledge about the robbers' direction and descriptions, but the standard for probable cause is based on known facts, not unknowns. He also contended that his lack of suspicious attire and cooperation with police negated probable cause, which was rejected as officers are not required to favor innocence when reasonable inferences support probable cause.
Brown-Troop cited two cases to support his argument. In State v. Eckert, the court upheld probable cause due to the suspect’s proximity to the crime scene and a matching description, which Brown-Troop argued did not apply to him. However, the court maintained that Brown-Troop's behavior—running from the crime scene—was suspicious enough to establish probable cause. In State v. Nawrocki, the court dealt with a different issue regarding the necessity of a show-up identification and did not directly address probable cause. The State’s concession in that case was not relevant to the probable cause analysis in Brown-Troop's situation.
The record establishes probable cause for the warrantless arrest of Brown-Troop, indicating that a motion to suppress based on an unlawful arrest would have been unsuccessful. Consequently, trial counsel is not considered deficient for not pursuing a meritless motion. An arrest's legality also validates a search incidental to it; thus, the search that yielded evidence from Brown-Troop was lawful, and counsel was not ineffective for not challenging it.
Brown-Troop argued that his statement regarding being behind the dumpster should be suppressed, as it was made in custody without Miranda warnings. While the court assumes he was in custody during interrogation, it recognizes that such statements typically require proper warnings. The State contends that trial counsel might have believed the trial court would deny a suppression motion under the emergency exception to Miranda, as police were responding to a potential robbery. However, the court finds this argument weak and suggests the exception is not as broad as implied.
Additionally, the State argued that counsel may have thought a suppression motion was unnecessary since Brown-Troop's explanation could be seen as potentially innocent. However, the court emphasizes that trial counsel should provide rationale for their strategic decisions. Thus, there is a likelihood of trial counsel's deficiency in failing to file the motion to suppress Brown-Troop's statement.
To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both deficient performance and resulting prejudice. Brown-Troop failed to adequately show prejudice from his trial counsel's failure to suppress his non-Mirandized statement, which was used by the State to challenge his credibility. Although Brown-Troop argued that the statement implied consciousness of guilt and undermined his position, the court found no inconsistency in his maintained explanation for being behind the dumpster. Furthermore, since Brown-Troop testified in his own defense, his statement would have been admissible to challenge his testimony regardless of its suppression, negating any claims of prejudice.
Regarding dog-tracking evidence, Brown-Troop argued that the evidence obtained from K-9 Nova was unreliable and should have been excluded by his counsel. He contended that competent legal professionals should recognize the scrutiny surrounding such evidence and should have moved to exclude it due to a lack of evidentiary foundation. However, the court noted that the law on dog-tracking evidence is unsettled, and failing to object on this basis does not constitute deficient performance. The court also indicated that the mechanics of Nova’s tracking were unnecessary for establishing a foundation for the evidence obtained, thus no grounds existed for exclusion. Overall, the court found that Brown-Troop did not sufficiently allege material facts to suggest a reasonable probability of a different trial outcome had his counsel acted differently.
Establishing a connection between the evidence, the defendant, and the crime is essential for the admission of items related to an offense, as noted in Wold v. State. In this case, Brown-Troop asserts that such a connection was established through testimony regarding the dog Nova's tracking capabilities, which he misinterprets as linking the scent to the robber. However, it was clarified that Nova is trained to track only the freshest human scent, not a specific individual. Testimony detailing Nova's tracking mechanics was deemed unnecessary for the evidence’s admissibility.
Police discovered cash, a hooded sweatshirt, and a gun along the path of three suspects observed by a bus driver, linking these items to the armed robbery reported by the victims. The hooded sweatshirt is directly linked to Brown-Troop via DNA, while the gun and cash are circumstantially connected because the gun was found near the sweatshirt, and the cash resembled that found in Brown-Troop's pocket. Although the strength of these connections can influence the jury’s perception, they do not compromise the admissibility of the evidence.
Brown-Troop's claim of ineffective trial counsel for failing to object to the dog-tracking evidence is unfounded, as the legal standards for such evidence are not well-established. Additionally, he contends that counsel should have raised a Daubert objection to Fitzgerald’s expert testimony about Nova’s tracking. Under the Daubert standard, expert testimony must be based on reliable principles and methods relevant to the case. However, neither party provides Wisconsin case law on dog-tracking evidence, and various out-of-state rulings show inconsistent conclusions about its admissibility and the applicability of Daubert. Given the unsettled nature of the law, trial counsel's decision not to raise this issue does not constitute deficient performance.
No prejudice was identified in the case against Brown-Troop, even with potential deficiencies in his counsel's performance. The conviction was strongly supported by physical evidence, notably DNA on a sweatshirt, and corroborated by eyewitness accounts. Testimony from Fitzgerald regarding the actions of the tracking dog, Nova, was deemed non-expert and relevant, as it focused on what Nova retrieved from the scene, not on how the tracking was conducted.
Brown-Troop's claim that his attorney failed to cross-examine Fitzgerald effectively was found to lack specificity regarding how such a cross-examination would have changed the trial's outcome. The court highlighted that claims of ineffective assistance of counsel must demonstrate with precision the actions that were not taken and their potential impact on the proceedings.
Ultimately, the postconviction motion was deemed insufficient to warrant relief, and a hearing was not mandatory but discretionary for the trial court. Additionally, Brown-Troop's request for new counsel was also denied, with the court finding no erroneous exercise of discretion, despite his claims of inadequate preparation and failure to file a motion to suppress evidence.
Relief from trial counsel and appointment of a new attorney is at the trial court's discretion, guided by factors such as the adequacy of inquiry into the defendant's complaints, the motion's timeliness, and the severity of any conflict hindering communication and defense. Brown-Troop requested new counsel twice: first during a pretrial hearing on March 28, 2016, citing withheld evidence related to robbery and fleeing charges, but after counsel offered to provide the requested video and transcripts, the issue was considered resolved. On the trial date, Brown-Troop reiterated his request, expressing concerns about not having seen crucial evidence and feeling that counsel was not acting in his best interest, particularly regarding a plea deal. The trial court explained that differing opinions between a client and attorney do not inherently indicate malpractice, emphasizing the attorney's role in providing professional advice. The court also addressed the video evidence, assuring Brown-Troop that he would have time to review it with counsel that day, despite counsel offering to seek an adjournment, which Brown-Troop declined in favor of proceeding to trial.
A delay in sending potential jurors to the courtroom led the trial court to offer a video for Brown-Troop to view. Brown-Troop expressed confusion over the State's prior statement that no video existed. The trial court acknowledged potential mistakes and emphasized the importance of allowing Brown-Troop to view the video before the trial commenced. When Brown-Troop requested a new attorney, the court indicated that it was unlikely to grant this request due to its timing and the reasons provided. The court explained that dissatisfaction with legal advice alone is insufficient for a lawyer's withdrawal, asserting that effective communication could still occur between Brown-Troop and his counsel.
After a recess for Brown-Troop to view the video with his attorney, court proceedings resumed without further issues raised. Brown-Troop later argued that the trial court failed to adequately inquire about his representation concerns and did not discuss his options between a trial delay and new counsel. He claimed that his speedy trial rights were prioritized over his request for a new lawyer. However, the court found its inquiry into Brown-Troop's reasons for seeking new counsel sufficient, noting his dissatisfaction stemmed from counsel's guilty plea recommendation and the delay in viewing the video. Brown-Troop did not provide supporting authority for his claims regarding the interplay of his rights.
The court deemed Brown-Troop's assertions about raising counsel issues “early and often” as conclusory, lacking specific details. It ultimately concluded that any conflict between Brown-Troop and his attorney did not impair communication to the extent of compromising his defense. The court reiterated that it is the lawyer's role to guide clients, who retain the choice to accept or reject that guidance. Brown-Troop also contended that the failure to discuss the robbery video affected the integrity of his defense, as they did not strategize around this key piece of evidence.
Brown-Troop failed to specify how an earlier review of video evidence would have impacted the defense strategy or the significance of the video itself, despite the trial court allowing time for him to view it. Consequently, the court did not err in refusing to discharge his trial counsel on the day of trial, affirming the judgment and order. The role of Brown-Troop's clothing collected upon his arrest and its relevance to his convictions remains unclear, as does the timing of the observation of him sweating, which was disputed and not considered in the probable cause assessment. The State contested Brown-Troop's custodial status when he made a statement, but the review of the postconviction motion is confined to its own content, excluding new arguments from the appellant's brief. Given the substantial DNA evidence linking him to the robbery, the admission of his statement was deemed harmless error. Brown-Troop sought a threshold inquiry for probable cause similar to that in State v. Miller, which dealt with a drug dog alert; however, the circumstances differed as this case involved a search after a crime was committed. The claims of illegal search and seizure during his arrest were not substantiated. Although Brown-Troop criticized his trial counsel's lack of knowledge about the robbery video prior to trial, the court determined that the denial of his request for new counsel was not an abuse of discretion. Additionally, the court's lack of a definitive answer regarding replacement counsel did not elicit further argument from Brown-Troop, and the request was ultimately denied as anticipated.
