State v. Daniel D. Moore ( 2023 )

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.
July 11, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2022AP638-CR Cir. Ct. No. 2016CF2208
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DANIEL D. MOORE,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE, Judge. Affirmed.
Before Brash, C.J., Donald, P.J., and White, J.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Daniel D. Moore appeals a judgment convicting him
of first-degree recklessly endangering safety and unlawfully possessing a firearm
No. 2022AP638-CR
after being convicted of a felony. He also appeals an order denying his motion for
postconviction relief. Moore argues that he received ineffective assistance of trial
counsel because his counsel did not object during voir dire when prospective jurors
were primarily referred to by numbers rather than their names. We affirm.
¶2 During Moore’s direct appeal, his appointed counsel filed a no-merit
report. See WIS. STAT. RULE 809.32 (2021-22),1 and Anders v. California, 386 U.S.
738 (1967). After conducting an independent review of the record, as mandated by
Anders, we rejected the no-merit report, concluding that there were potential non-
frivolous arguments that could be raised on appeal.2 See State v. Moore,
No. 2019AP1194-CRNM, unpublished op. and order (WI App Apr. 16, 2021). On
remand, Moore’s counsel filed a postconviction motion arguing that he received
ineffective assistance of trial counsel because his counsel did not object to the fact
that the jury was referred to largely by juror numbers during voir dire, rather than
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
In our order rejecting the no-merit report, we stated that we had not reached any
conclusion about whether the non-frivolous arguments would or should prevail. Rather, in accord
with Anders, we concluded that the arguments were not frivolous and thus should be raised in a
merits brief. We explained:
When resolving an appeal under WIS. STAT.
RULE 809.32, the question is whether a potential issue would be
“wholly frivolous.” State v. Parent, 2006 WI 132, ¶20, 298
Wis. 2d 63, 725 N.W.2d 915. The test is not whether the lawyer
should expect the argument to prevail. See SCR 20:3.1, cmt.
(action is not frivolous even though the lawyer believes his or her
client’s position will not ultimately prevail). Rather, the question
is whether the potential issue so lacks a basis in fact or law that it
would be unethical for the lawyer to prosecute the appeal. See
McCoy v. Court of Appeals, 486 U.S. 429, 436 (1988).
State v. Moore, No. 2019AP1194-CRNM, unpublished op. and order at 3 (WI App Apr. 16, 2021).
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No. 2022AP638-CR
by their names. After holding an evidentiary hearing, the circuit court denied the
motion. This appeal follows.
¶3 To prove a claim of ineffective assistance of counsel, a defendant must
show that his or her counsel performed deficiently and that this deficient
performance prejudiced him or her. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Counsel’s performance is deficient only if it falls “below … objective
standard[s] of reasonableness.” State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d 640,
782 N.W.2d 695 (citation omitted). “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690. To show
prejudice, “the 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.’” Carter, 324 Wis. 2d 640, ¶37 (citation omitted). A reviewing court may
dispose of a claim of ineffective assistance of counsel on either ground. Strickland,
466 U.S. at 697.
¶4 A circuit court may restrict information about jurors by impaneling an
anonymous jury, which occurs when the circuit court withholds information about
the jury from the public and the parties, or by impaneling a jury that uses numbers
rather than names in open court, sometimes called a “numbers jury,” which restricts
juror information available to the public, but not to the parties themselves. State v.
Tucker, 2003 WI 12, ¶11, 259 Wis. 2d 484, 657 N.W.2d 374. When a circuit court
restricts juror information, it raises “serious concerns regarding a defendant's rights
to an impartial jury and [the] presumption of innocence.” Id., ¶19. An anonymous
jury may cause the jury to believe “that the defendant is a dangerous person from
whom the jurors must be protected, thereby implicating the defendant's
constitutional right to a presumption of innocence.” Id., ¶18 (citation omitted). “[I]f
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No. 2022AP638-CR
a circuit court restricts any juror information, the court must make an individualized
determination that the jury needs protection and take reasonable precautions to
minimize any prejudicial effect to the defendant.” Id., ¶4.
¶5 At the beginning of the voir dire hearing, the circuit court informed
the pool of potential jurors that they should give their names when answering
questions. The circuit court stated: “When answering the questions, if you would
please, start with your juror number, your name and your answer. Everyone needs
to hear your answer, so we need to be very loud and clear when you give your
answers.” (Emphasis added.) As the voir dire hearing proceeded, several jurors
followed this direction and provided their names and numbers when answering
questions. However, the majority of jurors provided only their juror number when
they answered questions.
¶6 The primary concern with restricting juror information is that it may
adversely affect a defendant’s right to the presumption of innocence because the
jury may speculate as to the reason for the court order requiring anonymity and may
conclude that the defendant is a bad or dangerous person. This concern does not
exist here. Under the circumstances of this case, the circuit court did not advise or
order the jury to keep their identities shielded from the defendant. To the contrary,
the circuit court explicitly asked the jurors to state their names when answering
questions. Most of the jurors simply failed to include all of the information that the
circuit court had asked them to include when responding. There was no reason for
trial counsel to object to the fact that many of the jurors were referred to by numbers
because there was no court order requiring them to only use numbers and there was
no concern that the jury would draw any adverse inference about the defendant.
Therefore, we conclude that trial counsel did not render constitutionally ineffective
assistance.
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No. 2022AP638-CR
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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