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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
December 14, 1999
                                                                                                                                                     A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                     petition  to  review  an  adverse  decision  by  the
                                                                                      Marilyn L. Graves
                                                                                                                                                     Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                                      Clerk, Court of Appeals
                                                                                                                                                     STATS.
                                                                                      of Wisconsin
No.                                                                                   98-3416
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DARIUS K. JENNINGS,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
BONNIE L. GORDON, Judge.   Affirmed.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
¶1                                                                                    WEDEMEYER, P.J.    Darius K. Jennings appeals pro se from an
order denying his § 974.06, STATS., postconviction motion.   He claims:               (1) he
received ineffective assistance of both trial and appellate counsel;  (2) the trial
court erred  when  it admitted the  testimony of  the  victim without requiring  a




No. 98-3416
competency exam;  (3) the trial court erred in failing to ensure a speedy trial;
(4) the trial court erroneously exercised its discretion when it allowed the DNA
result  stipulation  into  evidence;                                                     (5) the  trial  court  should  have  conducted  an
evidentiary  hearing  relative  to  the  postconviction  motion;  and                    (6) we  should
reverse the conviction and order a new trial “in the interest of justice.”   We reject
all of Jennings’s claims and affirm.
I.   BACKGROUND
¶2                                                                                       On April 3, 1994, Jennings sexually assaulted victim Ethel S., who is
the great-grandmother of his children.   He was charged with five counts of sexual
assault.    DNA testing was conducted, but the sample was insufficient to yield
sufficient DNA to determine a banding pattern.   The testing could neither include
nor exclude Jennings as the perpetrator.   Trial counsel entered into a stipulation,
which  was  read  to  the  jury,  stating  that                                          “results  of  the  DNA  testing  were
inconclusive because … the semen sample submitted was either not a sufficient
quality to be tested or the condition of the semen was degraded.”   The jury trial
occurred  in  early  August  1994.    Ethel  was  the  State’s  primary  witness;  she
testified that Jennings was the assailant.   She identified him from the start.   She
was 100% positive that he was her assailant.   He came to her home, high on drugs,
looking for more money for drugs.   When she refused to give him money, he
assaulted her.   She testified that afterwards, he was apologetic and blamed the
drugs for his conduct.
¶3                                                                                       Jennings’s defense was mistaken identity.   Trial counsel focused on
the credibility of Ethel and the inconsistencies in her statements and testimony.
The  jury  convicted  on  all  five  counts.    Jennings  was  sentenced  to  six-year
consecutive terms on each count.   Jennings filed a postconviction motion, alleging
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No. 98-3416
ineffective assistance of trial counsel.   A Machner hearing1 was conducted and the
trial court concluded that Jennings received effective assistance of trial counsel.
Jennings’s postconviction counsel moved to withdraw, and Jennings filed a notice
of appeal pro se.   He later voluntarily dismissed the appeal.
¶4                                                                                            In November 1998, Jennings filed a pro se motion for postconviction
relief in the trial court, alleging ineffective assistance of trial counsel and appellate
counsel.2                                                                                     The  trial  court  denied  the  motion  without  conducting  another
evidentiary  hearing,  concluding  that  trial  counsel  was  not  ineffective  and,
therefore, postconviction counsel could not be ineffective.   Jennings now appeals.
II.   DISCUSSION
A.  Ineffective Assistance Claims.
¶5                                                                                            Jennings  raises  several  claims  of  ineffective  assistance:         (1) trial
counsel should not have entered into the DNA stipulation; (2) trial counsel should
have pressed for a speedy trial; (3) trial counsel should have requested that Ethel
submit to a competency exam, which might have excluded her as a witness; and
(4) postconviction counsel should have raised in a direct appeal the issues that
Jennings raises here.   We reject his claims.
¶6                                                                                            In order to establish that he did not receive effective assistance of
counsel, the defendant must prove two things:                                                 (1) that his lawyer’s performance
was deficient; and  (2) that  “the deficient performance prejudiced the defense.”
1  See State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2  As the State points out, Jennings proceeded on appeal pro se; therefore, we construe his
claims of ineffective appellate counsel to actually refer to postconviction counsel.
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No. 98-3416
Strickland  v.  Washington,  466  U.S.  668,  687  (1984);  State  v.  Sanchez,  201
Wis.2d  219,  548 N.W.2d  69  (1996).    A lawyer’s performance is not deficient
unless he “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”   Strickland, 466 U.S. at 687.
Even if a defendant can show that his counsel’s performance was deficient, he is
not  entitled  to  relief  unless  he  can  also  prove  prejudice;  that  is,  he  must
demonstrate that his counsel’s errors “were so serious as to deprive [him] of a fair
trial, a trial whose result is reliable.”    Id.    Stated another way, to satisfy the
prejudice-prong, a defendant must show  “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.”   Sanchez, 201 Wis.2d at 236, 548 N.W.2d
at 76 (citation omitted).
¶7                                                                                         In assessing the defendant’s claim, we need not address both the
deficient performance and prejudice components if he cannot make a sufficient
showing on one.   See Strickland, 466 U.S. at 697.   The issues of performance and
prejudice present mixed questions of fact and law.   See Sanchez, 201 Wis.2d at
236, 548 N.W.2d at 76.   Findings of historical fact will not be upset unless they
are clearly erroneous, see id., and the questions of whether counsel’s performance
was deficient or prejudicial are legal issues we review independently, see id. at
236-37, 548 N.W.2d at 76.
¶8                                                                                         Jennings first challenges trial counsel’s decision to stipulate that the
                                                                                           DNA evidence was “inconclusive.”   He points to a portion of the lab report, which
provides:
The DNA banding pattern obtained from the vaginal swabs
is similar to the DNA banding pattern obtained from the
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No. 98-3416
cervical swabs.   Neither the DNA banding pattern obtained
from  the  vaginal  swabs  nor  the  DNA  banding  pattern
obtained  from  the  cervical  swabs  matches  the  DNA
banding pattern obtained from the blood swatch label[]ed
Jennings.
Jennings claims this paragraph excludes him as the perpetrator and, therefore, trial
counsel  was  deficient  for  entering  into  a  stipulation  stating  the  test  was
“inconclusive.”   We are not persuaded.
¶9                                                                                      Cervical and vaginal swabs were obtained from the victim after the
assaults.   A pink pajama bottom worn by the victim at the time of the assaults was
also retrieved; it contained a semen stain.   These materials were sent to Cellmark
Diagnostics for DNA testing.   Trial counsel advised the trial court that Cellmark
reported verbally that the semen sample was too degraded and therefore could not
be banded.   Consequently, the results of the DNA testing were inconclusive.   This
is confirmed by the written report:                                                     “No conclusion can be reached regarding the
pink material cutting.   The DNA obtained from the vaginal swabs and the DNA
obtained from the cervical swabs did not originate from Jennings.   However, since
no standard was analyzed from [the victim], no conclusion can be reached.”
¶10    Jennings  claims  that  trial  counsel  should  not  have  stipulated  to
“inconclusive results.”   He asserts that the report excludes him as the perpetrator.
As indicated in the excerpt set forth above, however, Jennings is incorrect.   The
DNA testing did not exclude or include him as the perpetrator.   The statement that
the vaginal and cervical DNA did not come from Jennings does not exclude him
because it could have come from the victim.   Based on the information in the
record and the written report, the stipulation of  “inconclusive” test results was
accurate.   Trial counsel was not deficient for so stipulating.   Moreover, Jennings
has not shown what the report of the DNA test of the victim would have shown.
Thus, Jennings has not shown  “prejudice”  to him under the second prong of
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No. 98-3416
Strickland.   See State v. Flynn, 190 Wis.2d 31, 48, 527 N.W.2d 343, 350 (Ct.
App. 1994).
¶11    Jennings’s reliance on State v. Glass, 170 Wis.2d 146, 488 N.W.2d
432 (Ct. App. 1992) is misplaced.   That case involved an allegation that the sexual
assault victim had fabricated the event.   See id. at 148-49, 488 N.W.2d at 433.
The state crime lab found that the vaginal swabs taken after the alleged incident
did not contain any semen.   See id. at 149-52, 488 N.W.2d at 433-34.   Defense
counsel  stipulated  that  the  test  for  semen  in  the  vagina  of  the  victim  was
“inconclusive.”    See  id.    The  stipulation  in  Glass,  therefore,  created  a  false
impression to the jury about the test results.   The instant case is distinguishable
from Glass.   Here, the stipulation was not false, the tests were inconclusive and
did not exculpate Jennings as the perpetrator.
¶12    Jennings next claims that trial counsel was ineffective for failing to
insist on a speedy trial.   We are not convinced.   The right to a speedy trial is
guaranteed under the Sixth Amendment to the United States Constitution and
under art. I,                                                                                § 7, of  the Wisconsin Constitution.    Under the state and federal
constitutions, “‘the right to a speedy trial arises with the initial step of the criminal
prosecution, i.e., the complaint and warrant.’”   State v. Ziegenhagen, 73 Wis.2d
656,  664,  245  N.W.2d  656,  660  (1976)  (quoting State ex rel.  Fredenberg v.
Byrne, 20 Wis.2d 504, 508, 123 N.W.2d 305, 307 (1963)).   The remedy for the
denial of a speedy trial is “to set aside [the] judgment, vacate the sentence, and
dismiss the indictment.”   Strunk v. United States, 412 U.S. 434, 439-40 (1973).
¶13     To determine whether trial counsel was ineffective for failing to
ensure that Jennings received a speedy trial, we use the balancing test the United
States Supreme Court established in Barker v. Wingo, 407 U.S. 514 (1972).   In
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No. 98-3416
Day v. State, 61 Wis.2d 236, 244, 212 N.W.2d 489, 493 (1973), the Wisconsin
Supreme Court adopted the Barker test.    In Barker, the Court identified four
factors to be used in a speedy trial inquiry:   length of delay, the reason for the
delay, the defendant’s assertion of his right, and prejudice to the defendant.   See
Barker,  407 U.S. at  530.   Barker requires that we first determine whether the
length of delay is presumptively prejudicial.   If it is, then we must balance the four
Barker  factors  under  the  totality  of  the  circumstances.    See  id.    If  it  is  not
presumptively prejudicial, there was no violation of the speedy trial right and we
need not proceed to the balancing of the four factors.   See id.
¶14    The United States Supreme Court has noted,  “Depending on the
nature of the charges, the lower courts have generally found postaccusation delay
‘presumptively prejudicial’ at least as it approaches one year.”   Doggett v. United
States, 505 U.S. 647, 652 n.1 (1992).   Our Wisconsin Supreme Court has similarly
determined that a twelve-month delay between a preliminary exam and trial was
presumptively prejudicial.   See Green v. State, 75 Wis.2d 631, 636, 250 N.W.2d
305, 307 (1977).
¶15    Applying these principles to the instant case, we must first examine
the length of delay.    The offenses occurred on April  3,  1994.    Jennings was
arraigned on April 14, 1994.   A trial was set to occur on June 27, 1994.   In May
1994, the trial court was advised that DNA testing was going to be performed as it
was recently discovered that a semen sample existed.   Trial counsel and the State
entered into a stipulation that Jennings “waives his right to a speedy trial if [he]
can obtain funding for the DNA test and if the samples submitted are suitable for
testing.”   Test results were expected July 6th or 7th.   The jury trial was reset for
July 20th.   This date was changed to August 8th because the defense investigator
was going to be on a honeymoon the week of July 20th and the main detective was
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No. 98-3416
going to be on vacation the following week.   Trial commenced on August 8, 1994.
Therefore, we are looking at the length of time between April 14 and August 8,
1994.   This length is less than four months, not even close to the twelve-month
presumptive delay mark discussed above.   We conclude, therefore, that the four-
month delay was not presumptively prejudicial.   Accordingly, we need not balance
the remaining Barker factors.   Jennings’s speedy trial right was not violated.   It
logically  follows  that  trial  counsel  cannot  be  found  to  be  ineffective  on  this
ground.
¶16    Jennings next claims that trial counsel was ineffective for failing to
insist that Ethel undergo a competency exam.   He claims that she suffered from
Alzheimer’s disease, which affected her memory and identification.   He argues
that Ethel should have had a competency exam before being allowed to testify.   He
cites two statutes to support this claim:                                                    §§ 971.16 and 804.10, STATS.   We reject
his contention.
¶17    First,  neither  statute  he  cites  applies.    Section                              971.16,  STATS.,
governs examination of the defendant, not a witness, and § 804.10, STATS., applies
to parties.   Second, the record demonstrates that trial counsel zealously challenged
the credibility of Ethel.   There was no ineffective assistance on this basis.
¶18    Finally, Jennings contends postconviction counsel was ineffective
for failing to raise the issues raised in this appeal.   We do not agree.   As set forth
above and as set forth in the remainder of this opinion, Jennings’s issues are
without merit.   Accordingly, postconviction counsel cannot be found ineffective
for failing to pursue meritless claims.
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No. 98-3416
B.   Witness Competency Exam.
¶19    Jennings contends that the trial court erred when it allowed Ethel to
testify without first ordering her to submit to a competency exam.   We are not
persuaded.
¶20                                                                                        “Every person is competent to be a witness except … as provided in
these rules.”   Section 906.01, STATS.   As noted above, Jennings fails to provide us
with any rule prohibiting Ethel from testifying.   Further, a witness’s competence,
as challenged by Jennings here, is an issue for the jury.   See State v. Dwyer, 143
Wis.2d 448, 461-62, 422 N.W.2d 121, 125-26 (Ct. App. 1988), aff’d, 149 Wis.2d
850, 440 N.W.2d 344 (1989).   Instead of having the trial court address witness
competency, the trier of fact considers competency as part of the credibility of a
witness.   See id. at 462, 422 N.W.2d at 126.   Trial counsel zealously challenged
Ethel’s credibility.   The jury decided against Jennings.   There was no trial court
error on this ground.
C.  Speedy Trial Issue.
¶21    Jennings also raises the issue of his right to a speedy trial as an error
on the part of the trial court.   He claims that the trial court should have honored his
speedy trial request and, by failing to do so, violated the constitutional right.   We
do not agree.
¶22    In reviewing constitutional questions, the trial court’s findings of
historical facts are subject to the clearly erroneous standard, but the application of
those  facts  to  constitutional  standards  and  principles  is  determined  without
deference to the trial court’s conclusion.   See State v. Trammel, 141 Wis.2d 74,
77, 413 N.W.2d 657, 658-59 (Ct. App. 1987).
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No. 98-3416
¶23    We previously concluded that Jennings’s right to a speedy trial was
not violated.   Accordingly, the trial court did not commit any error in this regard.
D.  Trial Court Admission of DNA Stipulation.
¶24    Jennings also claims that the trial court erred when it knowingly
allowed a false stipulation into evidence.   He argues that the trial court had the
Cellmark lab report before it and, therefore, should have refused to allow the DNA
“inconclusive” stipulation to be read to the jury.
¶25    Our standard of review on the admission and exclusion of evidence
is limited to whether  the trial court erroneously exercised its discretion.    See
State v. Alsteen, 108 Wis.2d 723, 727, 324 N.W.2d 426, 428 (1982).   If a trial
court applies the proper law to the established facts, we will not find an erroneous
exercise of discretion if there is any reasonable basis for the trial court’s ruling.
See  id.    Appellate  courts  generally  look  for  reasons  to  sustain  discretionary
determinations.    See  Steinbach  v.  Gustafson,                                             177  Wis.2d  178,  185-86,  502
N.W.2d 156, 159 (Ct. App. 1993).
¶26    Here,  there  was no erroneous exercise  of  discretion.    The  DNA
stipulation  was  not  false.    It  accurately  reflected  the  results  of  the  testing.
According, there was no basis for which the trial court should have excluded it.
E.  Evidentiary Hearing.
¶27    Next, Jennings argues that the trial court erred when it denied his
§ 974.06,  STATS.,  postconviction  motion  without  conducting  an  evidentiary
hearing.   We do not agree.
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No. 98-3416
¶28    A defendant is not automatically entitled to an evidentiary hearing.
A trial court must hold an evidentiary hearing on the motion only if a defendant
alleges sufficient facts which, if true, would entitle him to relief.   See State v.
Bentley, 201 Wis.2d 303, 309, 548 N.W.2d 50, 53 (1996).   If a defendant fails to
allege  sufficient  facts,  makes  only  conclusory  allegations,  or  if  the  record
conclusively demonstrates that he is not entitled to relief, the trial court may, in its
discretion, deny the motion without holding a hearing.   See id. at  309-10,  548
N.W.2d at 53.   Whether a motion alleges sufficient facts to entitle a defendant to
relief is a question of law that we review de novo.   See id. at 310, 548 N.W.2d at
53.
¶29    Here, the record conclusively establishes that Jennings is not entitled
to the relief sought in the motion.   Accordingly, there was no need to conduct an
evidentiary hearing.
F.  Interest of Justice.
¶30    Finally, Jennings lards a catchall plea requesting that we reverse his
conviction and remand for a new trial in the “interest of justice.”   We decline the
invitation.    As noted within this opinion, we have rejected each of Jennings’s
allegations of error.  Accordingly, there is no reason to retry this case.
By the Court.—Order affirmed.
Not recommended for publication in the official reports
11




No. 98-3416(C)
¶31    SCHUDSON, J.  (concurring).      Jennings argues that trial counsel
was ineffective in: (1) ordering the laboratory to discontinue DNA testing without
completing the analysis that could have been exculpatory; (2) doing so for lack of
funding, rather than seeking additional financing or a court order to complete the
testing;  and                                                                         (3)  stipulating  that  the  test  results  were  inconclusive  when,  he
maintains, the actual lab findings were favorable to his defense.
¶32    While a bit intricate, the essential facts seem to be:
(a) Semen on the victim’s pajamas was too degraded to allow for DNA testing.
(b) Vaginal and cervical swab samples of the victim were tested; they matched
each other.
(c) A blood sample of Jennings was tested.
(d) According to the lab report, “[n]either the DNA banding pattern obtained from
the vaginal swabs nor the DNA banding pattern obtained from the cervical
swabs  matches  the  DNA  banding  pattern  obtained  from the  blood  swatch
label[]ed Jennings.”
(e) A blood sample of the victim was obtained.
(f) According to the lab report, “Testing on the blood swatch [of the victim] . . .
was discontinued at the request of [Jennings’ trial counsel].”




No. 98-3416(C)
Thus, if the victim’s blood sample had been tested, two apparent possibilities
would have emerged:
(1) The DNA banding pattern obtained from the victim’s vaginal and cervical
samples would, of course, have matched the DNA banding pattern obtained
from her blood sample and would have contained no additional, non-matching
DNA.    Therefore,  the  completed  tests  would  have  neither  exculpated  nor
inculpated Jennings.
(2) The DNA banding pattern obtained from the victim’s vaginal and cervical
samples would, of course, have matched the DNA banding pattern obtained
from her blood sample and would have contained additional non-matching
DNA.   Thus, the completed tests would have established that neither the victim
nor Jennings was the source of the additional, non-matching DNA found in the
vaginal and  cervical  samples.    Therefore,  the  completed  tests  would  have
established that someone other than Jennings had had intercourse with the
victim.
¶33    If, as Jennings contends, he always maintained his innocence, why
would  counsel  request  the  discontinuation  of  the  testing  that  could  have
exculpated him?   We do not know.   Presumably, the Machner hearing afforded
trial counsel the opportunity to answer that question.   Jennings, however, has not
provided this court with the transcript of that hearing.   He was responsible for
doing so.    See  State  Bank of Hartland v. Arndt,  129 Wis.2d  411,  423,  385
N.W.2d 219, 225 (Ct. App. 1986).   Under the circumstances, we must presume
that the Machner hearing evidence supports the trial court’s denial of Jennings’
motion.   See Suburban State Bank v. Squires, 145 Wis.2d 445, 451, 427 N.W.2d
393, 395 (Ct. App. 1988).
2




No. 98-3416(C)
¶34    Accordingly, although I do not join in the majority’s analysis of this
issue, I must respectfully concur.
3

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