STATE v. BANKS

that fourteen states have enacted statutes that authorize some form of this practice. See John D. Biancamano, Arresting DNA The Evolving Nature of DNA Collection Statutes and their Fourth Amendment Justifications, 70 OHIO ST. L.J. 619, 659 (2009).

NA databases . . . currently hold the DNA profiles of over five million people. Statutes requiring convicted persons to provide DNA samples have arisen in one form or another in every state. Challenges to these statutes have uniformly failed, however, fourteen states now require certain groups of arrestees to submit their DNA as well. The legal challenges to these laws have not provided much case law as of yet, but as DNA technology becomes more and more capable of exposing highly personal information, our experience should guide us to believe that a line must be drawn somewhere.

Id. at 659-60. The questions associated with the collection of DNA from arrestees arise from specific state statutes enabling the warrantless search. Wisconsin has no statute providing for the collection of DNA from arrestees. Nothing in our review of this emerging debate in other states suggests that the law in Wisconsin is unsettled. Accordingly, Banks' attorney was not relieved of her duty to object to testimony and argument suggesting Banks' invocation of a constitutional right was inculpatory. In Wisconsin, the warrantless collection of a DNA sample is authorized only after conviction. See WIS. STAT. § 973.047(1f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

¶ 26. Because we conclude that there was deficient performance, we must also determine whether the deficiency was prejudicial. See Strickland, 466 U.S. at 687. To meet the prejudice test, Banks must demonstrate that his counsel's deficient performance was "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." See id. In other words, there must be a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

¶ 27. Banks was convicted on one count of possession of a firearm by a felon, contrary to WIS. STAT. § 941.29(2). At trial, the State called several law enforcement witnesses, none of whom had personally observed Banks with the gun. There was conflicting testimony from Ozier and Green, who had both been in the van with Banks immediately prior to the foot chase and discovery of the gun. The only direct evidence linking Banks to the gun came from Green, who testified that Banks had a gun in the van and Banks tossed the gun into Green's lap. Contradictory testimony came from Ozier, who stated that he had not known there was a gun in the van, did not see Banks with a gun, and that Banks did not pass a gun to Green. Both Green and Ozier testified that they had five prior criminal convictions.

¶ 28. Thus, the State had two eye witnesses, both with credibility issues stemming from past convictions, who presented contradictory testimony regarding Banks' possession of a gun. The State's use of Banks' refusal to submit a DNA sample bolstered the testimony of Green, who said Banks had a gun. At closing, the State emphasized Banks' refusal to support its theory that Banks feared a DNA test would unequivocally connect him to the gun. We cannot say with any confidence that the jury's verdict was untainted by the inadmissible evidence. The jury had two eyewitness versions of events and, without the DNA refusal, Ozier's observation that Banks did not have a gun may have been just as persuasive as Green's observation that Banks did have a gun. Consequently, there is a reasonable probability that, but for counsel's deficient performance, the result at trial would have been different. See Strickland, 466 U.S. at 694. Based upon our review of the record facts and applicable law, we conclude that Banks received ineffective assistance of counsel and is entitled to a new trial.

¶ 29. Banks presents additional grounds for his ineffective assistance of counsel claim. Although his complaint about juror bias is moot in light of our remand for a new trial, two of his remaining ineffective assistance arguments must be addressed before we remand to the circuit court.

¶ 30. Banks argues that his attorney should have asked the court to inform the jury that Wisconsin requires law enforcement to make a video or audio recording of a custodial interrogation. See WIS. STAT. § 972.115(2)(a). Specifically, he argues that Jacobsen's testimony should have been qualified by the fact that there was no recording of the statements Banks made to him. At trial, Jacobsen testified that he sat down with Banks and "tried to explain it the best [he could]" what Banks' detention was about. He told Banks that "there was a vehicle stopped and that there was a weapon found in or around that vehicle after a foot chase." In response, Banks told Jacobsen that he had been walking in the area after visiting someone he knew. Banks indicated to Jacobsen that he knew nothing about the incident or the gun.

WISCONSIN STAT. § 972.115(2)(a) states in relevant part:

If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is not available, upon a request made by the defendant as provided in s. 972.10(5) and unless the state asserts and the court finds that . . . good cause exists for not providing an instruction, the court shall instruct the jury that it is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony and that the jury may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case[.]

¶ 31. Banks contends that when Jacobsen interrogated him about the gun, no audio or visual recording was made and that the jury was entitled to know that the interrogation should have been recorded. See WIS. STAT. § 972.115(2)(a). The relevant jury instruction prompts the panel to consider whether the statement was actually made by the defendant, whether the statement was accurately restated at trial, and whether the statement or any part of it ought to be believed. See Wis JI — CRIMINAL 180. Banks asserts that the failure to request this instruction diminished his ability to dispute the officer's recollection of what was said in the interview room. Further, it allowed the jury to hear "uncontroverted testimony that Banks may have lied to law enforcement regarding his whereabouts on the day in question."

Banks was convicted on one count of obstructing an officer, contrary to WIS. STAT. § 946.41(1). At trial, he did not contest the obstructing charge, acknowledging that that he lied to the investigating officers. On appeal, he argues that the jury instruction was necessary to maintain some semblance of credibility with the jury on his defense to the possession of a firearm charge.

¶ 32. The State counters that the recording policy was not implicated because Banks was not under custodial interrogation when he made the statement to Jacobsen. See Wis. STAT. § 968.073. At a pretrial motion hearing, Jacobsen testified that he and Banks were in the police department interview room. Jacobsen provided Banks with Miranda warnings and Banks stated he did not want to speak to Jacobsen. Banks then asked what the charges were and made a "voluntary" statement about his presence in the area of the traffic stop and foot chase. He told Jacobsen he had been visiting a woman who lived in that neighborhood.

WISCONSIN STAT. § 968.073 states in relevant part:

Recording custodial interrogations. (1) In this section:

(a) "Custodial interrogation" means an interrogation by a law enforcement officer . . . of a person suspected of committing a crime from the time the suspect is or should be informed of his or her rights to counsel and to remain silent until the questioning ends, during which the officer or agent asks a question that is reasonably likely to elicit an incriminating response and during which a reasonable person in the suspect's position would believe that he or she is in custody or otherwise deprived of his or her freedom of action in any significant way.

. . . .

(2) It is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony unless a condition under s. 972.115(2)(a)1. to 6. applies or good cause is shown for not making an audio or audio and visual recording of the interrogation.

¶ 33. The circuit court held that "any statements made by Mr. Banks were made without interrogation by Mr. Jacobsen." It found that "Mr. Banks then did make a statement but that the statement was not in response to interrogation by law enforcement. . . . []]t was a voluntary or spontaneous statement by Mr. Banks." Whether a suspect was subject to interrogation by the government is a question of constitutional fact. State v. Hambly, 2008 WI 10, ¶ 49, 307 Wis. 2d 98, 745 N.W.2d 48. We will not upset the circuit court's findings of evidentiary or historical fact unless they are clearly erroneous. Id. The determination of whether the facts satisfy the legal standard is a question of constitutional law, which this court decides independently of the circuit court but benefiting from its analysis. Id.

¶ 34. Interrogation refers to express questioning, but also encompasses actions that are the functional equivalent. Id., ¶ 46. The seminal case interpreting the meaning of interrogation is Rhode Island v. Innis, 446 U.S. 291 (1980). There, the United States Supreme Court explained that the term "interrogation" refers not only to express questioning, but also to the functional equivalent of express questioning. Id. at 301. The "functional equivalent of express questioning" means "words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response." Hambly, 307 Wis.2d 98, ¶ 46. "Interrogation" must reflect a measure of compulsion beyond that which is inherent in custody itself. Id.

¶ 35. Our review convinces us that Banks' statement was not made in response to interrogation by Jacobsen. Banks concedes the interaction between himself and Jacobsen was "brief." He also concedes that Jacobsen prepared to leave once Banks invoked his right to counsel. Nonetheless, Banks asserts that he was being interrogated because of the location of the questioning (the police department interview room) and the fact that Banks was still seated at the table with Jacobsen when he made his statement. Banks offers indicia of custody, but not interrogation. When Banks asked Jacobsen about the reason for his detention, Jacobsen told him it was in regard to a green van, a foot chase, and a gun. This is not express questioning, nor is it the functional equivalent. See id., ¶ 51 (officer's recitation of the charges to the suspect is not express questioning). Banks' subsequent unsolicited comment about his presence in the area was not provoked by any statement or action on the part of Jacobsen.

¶ 36. As the State emphasizes, because there was no interrogation, Banks cannot rest a claim of ineffective assistance based on counsel's failure to request a jury instruction relevant only to interrogations.

¶ 37. Banks next argues that his counsel was ineffective when she provided the State with a letter that Green had written to Banks prior to trial. The disclosure of this letter led to an adjournment of the trial and the discovery of another letter that was written by Banks to Green. The letter from Banks included statements such as: "what's understood need not to be talked about" and "you told me everything was all good, we gonna lay back" and "you need money you know I got you." Both letters were received into evidence at trial.

¶ 38. Banks argues that his attorney had no affirmative duty to turn over the letter. He directs us to his attorney's statements at the pretrial hearing, where she indicated that she was not sure yet whether she would use Green's letter at trial, and that it was "not that important" to the defense. However, Banks' attorney explained that while she did not see the letter from Green as "crucial" to their case, she would "consider[] using" the letter for "impeachment purposes" against Green.

¶ 39. The State also directs us to defense counsel's testimony at the posttrial Machner hearing. There, counsel explained that Banks had given her the letter from Green and that they talked at least twice about providing the letter to the State. The strategy behind this disclosure was to show that Green was potentially uncooperative and to possibly negotiate reduced charges against Banks or, in the alternative, to use it for possible impeachment of Green's credibility at trial. According to counsel's notes, Banks had decided to disclose the letter because some of Green's statements could have been interpreted as Green taking responsibility for the crimes charged against Banks. The State also observes that Banks told his attorney about the letter that he sent to Green and assured her that it contained nothing to be worried about.

State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979).

¶ 40. The circuit court determined that Banks' attorney was not deficient for disclosing the letter to the State. We agree that counsel's decision was reasonable under the circumstances. The strategic decision to use the letter for possible impeachment and to undermine the State's confidence in a key witness reflects a competent assessment of the risks of disclosure. Matters of reasonably sound strategy, without the benefit of hindsight, are "virtually unchallengeable." See Strickland, 466 U.S. at 690-91. Furthermore, the reasonableness of counsel's actions must be taken in context where the defendant's statements or actions influenced the strategy. See id. at 691. Here, Banks gave the letter from Green to his attorney and they discussed the best course of action. Banks participated in the decision to disclose the letter.

Counting Prior Convictions for Impeachment Purposes

¶ 41. Next, Banks argues that the circuit court erred when it decided that Green need only disclose five of his seven criminal convictions. WISCONSIN STAT. § 906.09 allows evidence of prior convictions to be introduced for the purpose of attacking witness credibility. Here, the circuit court held that Green must declare only five of his seven prior convictions because, in the remaining two cases, Green had entered guilty pleas but had not yet been sentenced. Banks alleges error based on State v. Trudeau, 157 Wis.2d 51, 54, 458 N.W.2d 383 (Ct. App. 1990) (an accepted guilty plea constitutes a "conviction" for impeachment purposes under § 906.09). Both the State and the circuit court acknowledge that Banks is correct. We agree.

¶ 42. Normally, having determined that error occurred, the next step in our analysis would be to determine whether the error was harmless. However, because we remand for a new trial on other grounds, and because the circuit court has acknowledged the error, we need not address it further.

¶ 43. Before we may reverse and order a new trial, we must determine whether the evidence presented was sufficient to convict Banks. If it was not sufficient, we are precluded from remanding for a new trial under the double jeopardy clauses of the United States and Wisconsin Constitutions. See State v. Perkins, 2001 WI 46, ¶ 47, 243 Wis.2d 141, 626 N.W.2d 762. Evidence is insufficient to support a conviction only if, when viewed most favorably to the State, "[it] is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Zimmerman, 2003 WI App 196, ¶ 24, 266 Wis.2d 1003, 669 N.W.2d 762 (quoting State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752 (1990)); see also WIS. STAT. § 805.14. Whether the evidence is sufficient to support the conviction is a question of law that we review de novo. See State v. Booker, 2006 WI 79, ¶ 12, 292 Wis.2d 43, 717 N.W.2d 676.

¶ 44. Banks asserts that the State's case relied almost entirely on the testimony of Green because he was the only witness to testify that Banks had possession of a gun. Yet, Banks argues, Green's testimony "was wildly inconsistent and was directly contradicted by a number of the State's other witnesses." He alleges that Green lied during his testimony and that nothing he said has sufficient credibility to support a conviction. Banks emphasizes the testimony of Ozier, suggesting that Ozier's contrary version of events makes Green's testimony insufficient for a conviction.

¶ 45. The State responds that the jury was free to believe whatever version of the events it chose and could accept or discount the testimony of any witness whose credibility it questioned. Even where internal discrepancies exist in a witness's testimony or between one witness's testimony and another's, "that fact in itself does not result in concluding as a matter of law that the witness is wholly incredible." See State v. Smith, 2002 WI App 118, ¶ 20, 254 Wis.2d 654, 648 N.W.2d 15.

¶ 46. In reviewing the evidence, we must keep in mind that the credibility of the witnesses and the weight of the evidence is for the fact finder, and we must adopt all reasonable inferences which support the jury's verdict. See Poellinger, 153 Wis.2d at 506. The test is not whether this court is convinced of the defendant's guilt beyond a reasonable doubt, but whether a reasonable jury could have determined guilt beyond a reasonable doubt. See State v. Jensen, 2000 WI 84, ¶ 23, 236 Wis.2d 521, 613 N.W.2d 170.

¶ 47. Here, the jury was presented with eyewitness testimony from Green that Banks had a gun in the van and that Banks tossed the gun to Green. That is sufficient evidence to support a conviction for possession of a firearm under Wis. STAT. § 941.29(2), which required proof that Banks "knowingly had actual physical control of a firearm." See Wis JI — CRIMINAL 1343. Accordingly, a new trial does not place Banks in double jeopardy. See Perkins, 243 Wis.2d 141, ¶ 47 (if the evidence is sufficient to sustain a conviction, double jeopardy will not preclude a new trial).

The other element the State had to prove was that Banks was a convicted felon when he possessed the gun. Neither party disputes this element of the crime.

CONCLUSION

¶ 48. The deficient performance of counsel in failing to object to the State's questions and argument regarding Banks' refusal to submit to a DNA test was prejudicial and undermines our confidence in the out-come of the trial. All other errors alleged by Banks are rendered moot by our remand or have been addressed herein. Because the admissible evidence, viewed in the light most favorable to sustaining the conviction, is sufficient to sustain a conviction, we remand for a new trial.

By the Court. — Judgment and order reversed and cause remanded with directions.