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COURT OF APPEALS
DECISION
NOTICE
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 16, 1997
A party may file with the Supreme Court a
Marilyn L. Graves                                                                        petition  to  review  an  adverse  decision  by  the
Clerk, Court of Appeals                                                                  Court of Appeals.  See § 808.10 and RULE 809.62,
of Wisconsin                                                                             STATS.
Nos.  96-2287-CR & 96-2288-CR
STATE OF WISCONSIN                                                                       IN COURT OF APPEALS
                                                                                         DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JOSEPH WILLIAMS,
DEFENDANT-APPELLANT.
APPEAL  from  judgments  and  an  order  of  the  circuit  court  for
Milwaukee County:   VICTOR MANIAN, Judge.   Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
PER   CURIAM.      Joseph   Williams   appeals   from   judgments
convicting  him,  following  a  jury  trial,  of  loan  sharking,  robbery  and  armed
robbery, all as a party to a crime, contrary to §§ 943.28(2), 943.32(1)(b) & (2), and
939.05, STATS.   Williams also appeals from the order denying his postconviction
motion and motion to reconsider.   Williams argues that the trial court erred in:




Nos. 96-2287-CR & 96-2288-CR
denying his motion to suppress evidence found in co-defendant Reginald Green’s
car; finding that the evidence presented at trial was sufficient to convict Williams;
finding  no  ineffective  assistance  of  trial  counsel;  and,  finally,  in  sentencing
Williams to thirty years’ imprisonment.
The trial court found that the co-defendant consented to the search of
Williams’s car; that the evidence was sufficient to convict Williams; that Williams
failed to meet his burden of proof in his ineffective assistance of counsel claim;
and that the thirty-year sentence was not excessive and unduly harsh.   Because
none of these findings was clearly erroneous, we affirm.
I. BACKGROUND.
Joseph  Williams  and  his  co-defendant,  Reginald  Green,  were
charged in one complaint with the armed robbery of Faheem Hamdani and of
engaging in prohibited loan sharking practices with Danielle Malliet, both as party
to a crime.   Both were also charged in a separate complaint with the robbery of
William Gales, again, as party to a crime.   The cases were consolidated for trial.
Williams brought a motion to suppress evidence of the loan sharking scheme
found in co-defendant Green’s car.   The motion was denied.   Following a jury
trial,  Williams  was  convicted  of  one  count  of  armed  robbery,  one  count  of
robbery, and the loan sharking charge, all as a party to a crime.   Green was found
guilty of  loan  sharking  and robbery, but not armed robbery.    The  trial court
sentenced Williams to ten years on all three counts, to be served consecutively.
Williams brought a postconviction motion and a motion for reconsideration which
were denied.   Williams now appeals.
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Nos. 96-2287-CR & 96-2288-CR
II. ANALYSIS.
A. Motion to suppress.
Under the Fourth Amendment, a warrantless entry and search is
presumptively unreasonable.   See Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973); State v. Boggess, 115 Wis.2d 443, 448-49, 340 N.W.2d 516, 520 (1983).
Consent,  however,  is  a  recognized  exception  to  the  Fourth  Amendment
requirements for a warrant and probable cause.   See Schneckloth, 412 U.S. at 219,
cited in State v. Flynn, 190 Wis.2d 31, 41, 527 N.W2d 343, 347 (Ct. App. 1994),
cert. denied, 514 U.S. 1030 (1995).   Whether consent was given and the scope of
the consent are factual determinations for the trial court that we must accept unless
clearly erroneous.   See State v. Garcia, 195 Wis.2d 68, 75, 535 N.W.2d 124, 127
(Ct. App. 1995).
At the motion to suppress the evidence, a City of Milwaukee police
officer testified that he was responsible for securing the perimeter of Green’s
apartment after Green’s arrest.   In the process, he positioned himself next to a
green van in the parking lot adjacent to Green’s apartment, and he looked into the
van to see if anyone was inside.   In peering into the van he noticed papers with
numbers on them lying on the dashboard.   Later, after requesting and receiving
permission from Green to search his storage bin and his vehicle for weapons, he
discovered that this green van belonged to Green.    Believing the papers to be
evidence  of  the  loan  transactions,  he  seized  them.    The  papers  were  later
introduced as evidence of the loan sharking scheme.
Williams  characterizes  this  search  as  illegal,  relying,  in  part,  on
Green’s  testimony  that  he  gave  no  one  permission  to  search  his  automobile.
Williams argues that the officer’s failure to note that Green consented to the
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Nos. 96-2287-CR & 96-2288-CR
search in either his memo book or his supplemental report, coupled with his
inability to recall Green’s exact words when consenting to the search, is proof that
the officer was not telling the truth.    Further, he also argues that since Green
signed no consent form and no one else testified to hearing Green consent to the
search, the trial court erred in denying his motion.   Finally, he claims that under
these circumstances the police were required to secure a search warrant.   The trial
court, however, determined that consent had been given.
The  competing  versions  surrounding  the  issue  of  consent  were
rightfully matters to  be  determined  by the  trial court.    The  credibility of  the
witnesses and the weight to be given their testimony are for the trier of fact to
determine.   Schultz v. State, 87 Wis.2d 167, 173, 274 N.W.2d 614, 617 (1979).
The trial court was faced with a credibility contest.   After personally observing the
demeanor of each witness and testing the versions against the backdrop of logic,
common sense and police practices, the trial court found the police officer more
credible.   In reaching its decision, the trial court stated:                               “I think that the officer is
telling the  truth.    I don’t doubt what he says is true,  and I  believe him and
therefore  the  motion  to  suppress  is  denied.”    The  defendant  challenged  the
officer’s credibility based on his failure to note Green’s consent in his written
reports,  and  his  failure  to  recall  Green’s  exact  statements.    The  trial  court
concluded, however, that the officer’s action in connecting up the pieces of paper
with  the  loan  sharking  charge  was                                                      “good  police  work,”  and  appropriately
discounted the technical omissions.   The trial court is in a better position to gauge
the truthfulness and credibility of the witnesses than is an appellate court.   Given
the competing versions of the events, there is nothing “clearly erroneous” in the
trial court’s determination that the officer’s account was more truthful.   Thus, its
factual finding that consent was given to search the vehicle must be upheld.   See
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Nos. 96-2287-CR & 96-2288-CR
Garcia, 195 Wis.2d at 75, 535 N.W.2d at 127.   Further, Williams’s belief that a
search warrant was required under these circumstances is mislaid.   Once consent
was given, the police were under no obligation to obtain a search warrant.
B. Insufficient evidence.
Williams argues that the evidence was insufficient to support his
conviction for loan sharking.   Williams was charged with making an extortionate
extension of credit between the dates of October 1, 1994, and October 28, 1994.
The victims of the crimes testified to originally obtaining illicit drugs from the
defendants for which they would be charged  “crazy interest.”    The undisputed
testimony of the victims, however, was that no drugs were sold on credit during
that  time  frame;  rather,  that  the  only  transactions  with  the  defendants  were
requests for payment of money still outstanding from previous drug purchases.
Williams  posits  that  a  reading  of  the  definition  of  the  words                   “extortionate
extension  of  credit”  found  in                                                         § 943.28(1)(b),  STATS.,1  requires  proof  of  an
understanding  between  the  creditor  and  debtor  at  the  time  of  the  original
transaction that any delay or repayment could result in the use of violence or other
criminal means.   Stated otherwise, Williams claims that the timing of the threats is
crucial  and  the                                                                         “understanding”  referenced  in  the  statute  between  debtor  and
1  Section 943.28(1)(b), STATS., provides:
Loan sharking prohibited.   (1) For the purposes of this section:
….
(b) An extortionate extension of credit is an extension of credit
with respect to which it is the understanding of the creditor and
the debtor at the time it is made that delay in making repayment
or failure to make repayment could result in the use of violence
or other criminal means to cause harm to the person, reputation
or property of any person.
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Nos. 96-2287-CR & 96-2288-CR
creditor must be reached at the time of the initial loan.   Thus, he contends, the
statute does not encompass subsequent renewals of the debt or extensions of time
to pay.   Accordingly, he argues, an essential element of the crime of loan sharking
was  not  met  because  the  only activity  that  occurred  between  October  1  and
October 28 was a request for payment of monies extended at an earlier date.   As a
result, Green claims his verdict must be overturned because due process protects
him against conviction unless every fact necessary to the crime charged is proved
beyond a reasonable doubt.   See Turner v. State, 76 Wis.2d 1, 10, 250 N.W.2d
706, 711 (1977).
This issue was addressed and decided in Williams’s co-defendant’s
case, State v. Green,  208 Wis.2d  290,  560 N.W.2d  295  (Ct. App.  1997).    In
Green, this court looked to federal law for guidance on the interpretation of the
statute as the legislative history to § 943.28, STATS., “reflects that the statute was
‘intended to bring the Wisconsin law somewhat in line with the federal law, both
in terms of the prohibited conduct and in terms of penalty.”    Id. at  300,  560
N.W.2d at 298.   In Green, we compared the two statutes and commented that there
are additional definitions found in the federal law which are absent from the
Wisconsin version of loan sharking, although we noted that the federal and state
definitions of “extortionate extension of credit” are identical.   As a consequence,
we stated that “[w]e [we]re persuaded that the definition of extending credit under
the  federal  law  should  also  guide  Wisconsin  courts  in  cases  arising  out  of
§ 943.28(1)(b).”   Id. at 300-01, 560 N.W.2d at 298-99.
In looking to the federal counterpart to our loan sharking law and
federal case law interpreting it, we noted that  “[u]nder  18 U.S.C.  § 891,  ‘[t]o
extend credit’ means ‘to make or renew any loan, or to enter into any agreement,
tacit or express, whereby the repayment or  satisfaction of  any debt or claim,
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Nos. 96-2287-CR & 96-2288-CR
whether acknowledged or disputed, valid or invalid, and however arising, may or
will be deferred.’”   Id. at 300, 560 N.W.2d at 298.   We concluded that, under this
definition, a person may be prosecuted for making an extortionate extension of
credit  at  the  time  of  a  renewal  or  an  extension  of  a  preexisting  debt.    Id.
Additionally, we acknowledged that various federal cases support this conclusion.
See,  e.g.,  United  States  v.  Polizzi,                                                               801  F.2d  1543,  1556-57  (9th  Cir.  1986).
Finally, we determined that the allegations against the co-defendant fell within the
ambit of the prohibited conduct being addressed in the statute.   Green, 208 Wis.2d
at 302, 560 N.W.2d at 299.   Williams has not presented us with any argument or
facts distinguishing his case from Green.   Thus, according to the interpretation of
§ 943.28 we adopted in Green, there was sufficient evidence to support the jury’s
verdict against Williams.
C. Ineffective assistance of counsel.
Williams charges that the trial court erred by not finding that his
counsel was ineffective.   Williams claims that his trial counsel’s performance was
deficient in several manners.   He contends that his trial counsel failed to conduct a
proper investigation; failed to object to jury instructions;2 and failed to request that
the jury conference be placed on the record.
To  prevail  in  a  claim  of  ineffective  assistance  of  counsel,  the
appellant is required to meet the well-known two-prong test set forth in Strickland
2  Williams claims that the failure to object to the jury instructions was not waived;
however, he alternatively argues that if waiver is found, his attorney was ineffective for failing to
object.   We choose to address the latter argument because under State v. Schumacher,  144
Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988), Williams has waived his right to be heard on the
former argument.
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Nos. 96-2287-CR & 96-2288-CR
v.  Washington,                                                                          466  U.S.  668  (1984).   “First  the  defendant  must  show  that
counsel’s performance was deficient.   This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.   Second, the defendant must show that the
deficient performance prejudiced the defense.”   Id. at  687.   Whether counsel’s
performance was deficient and prejudicial are issues of law that we review de
novo.   See State v. Sanchez, 201 Wis.2d 219, 236-37, 548 N.W.2d 69, 76 (1996).
We may dispose of an effective assistance claim if the defendant fails to make
either showing.   Id. at 236, 548 N.W.2d at 76.
At the Machner3 hearing, the trial court found that trial counsel’s
pretrial investigation was adequate.   We agree that trial counsel’s investigation
was appropriate, and further note that Williams has made no showing that the
outcome would have been different had trial counsel conducted a more extensive
investigation.   With respect to counsel’s failure to object to the loan sharking jury
instructions, Williams fails to state why the given instruction was faulty or what
the transcript of the jury instruction conference would reveal.   Therefore, he has
failed to show any deficient performance or prejudice by his attorney’s failure to
object to the loan sharking jury instruction or to request a recording of the jury
instruction conference.
Next, Williams argues that the failure either to object to a lack of a
unanimity  instruction  or  to  request  one  constitutes  ineffective  assistance  of
counsel.    Williams argues that without such an instruction the jury may have
believed either one of the testifying witnesses to the loan sharking events was the
3  State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979).
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Nos. 96-2287-CR & 96-2288-CR
victim of the loan sharking charge.   While this may or may not have constituted
deficient performance, we find that Williams has not met the second prong of the
Strickland test which requires a showing of prejudice.    Williams has failed to
show  that  a  more  specific  instruction  or  verdict  form  would  have  yielded  a
different result.    Here, the prosecutor repeatedly advised the jury in both the
questioning of the witnesses as well as in argument that the victim of the loan
sharking charge was Danielle Malliet.   Further, the prosecutor cautioned the jury
that the other witness, William Gales, was not the victim of the loan sharking
charge brought by the State.   Thus, in this case there was no possibility of jury
confusion over the issue and the verdict was a reliable one.
D. Sentencing.
Finally,  Williams  complains  that  the  trial  court  erroneously
exercised its discretion when it sentenced him to ten years on each count to be
served consecutively. In reviewing sentencing decisions, there is a strong policy
against interfering with the trial court’s sentencing discretion.   See State v. Killory,
73 Wis.2d 400, 408, 243 N.W.2d 475, 481 (1976).   Our review of sentencing is
limited to a two-step inquiry.   We first determine whether the trial court properly
exercised its discretion in imposing sentence.   If so, we then consider whether that
discretion was erroneously exercised by imposing an excessive sentence.   State v.
Smith, 100 Wis.2d 317, 323, 302 N.W.2d 54, 57 (Ct. App. 1981), overruled on
other grounds, State v. Firkus, 119 Wis.2d 154, 350 N.W.2d 82 (1984).
Williams’s  underlying  premise  is  that  the  trial  court  erroneously
exercised its discretion because there is a disparity between his sentence and that
of the co-defendant.   He states that “it is simply wrong to sentence defendants to
differing terms for the exact same transaction.”   Williams’s argument, however, is
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Nos. 96-2287-CR & 96-2288-CR
flawed.   Williams and Green were not convicted of identical crimes.   The jury
elected to find Williams guilty of armed robbery, while determining that Green
was guilty of robbery.   Even so, Williams argues that “the disparate verdicts are
legally incomprehensible.”   We disagree.   The jury was free to evaluate the actions
of the defendants and determine whether their actions called for different verdicts.
Williams agreed to permit the jury to consider the lesser-included offenses of
robbery for both defendants and he should not now be heard to complain that the
jury found him, but not the co-defendant, guilty of the greater offense.
Williams  concedes  that  he  drew  and  displayed  his  gun,  while
Green’s gun was merely visible.    As the trial court, in addressing the issue at
sentencing, stated:                                                                     “[T]he record reflects, Mr. Williams was the one who had the
gun in his hand, the other fellow [Green] didn’t have his gun displayed, nor was he
threatening anyone with it.”   Thus, Williams’s conduct was more egregious than
Green’s, because drawing and displaying a weapon during the course of a robbery
is a far more serious act than coercing a victim to give up their belongings with a
verbal threat, when a gun is merely “visible.”   A defendant who claims a sentence
is excessive has a heavy burden.    We will find that a trial court erroneously
exercised  its sentencing  discretion by imposing an  unduly harsh  or  excessive
sentence                                                                                “only  where  the  sentence  is  so  excessive  and  unusual  and  so
disproportionate to the offense committed as to shock public sentiment and violate
the judgment of reasonable people concerning what is right and proper under the
circumstances.”    Ocanas v. State,  70 Wis.2d  179,  185,  233 N.W.2d  457,  461
(1975).   Given the different actions of the defendants during the commission of the
crime, the trial court properly exercised its discretion in sentencing Williams to an
additional five years for the armed robbery.
By the Court.—Judgments and order affirmed.
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Nos. 96-2287-CR & 96-2288-CR
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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