State v. Demarco Lee As-Saffat

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.
March 11, 2020
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2017AP2084-CR Cir. Ct. No. 2014CF1066

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DEMARCO LEE AS-SAFFAT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: TIMOTHY G. DUGAN and JEFFREY A. WAGNER,
Judges. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, 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).
No. 2017AP2084-CR

¶1 PER CURIAM. Demarco Lee As-Saffat appeals pro se from a
judgment of conviction and an order denying his postconviction motion.1 He
contends that (1) he was improperly charged; (2) he was denied the right to self-
representation; (3) he received ineffective assistance of counsel; and (4) he is
entitled to a new trial in the interest of justice. We disagree and affirm.

¶2 In 2013, As-Saffat led a 13-year-old girl who had run away from
home into a motel room and sexually assaulted her. When police attempted to
arrest As-Saffat, he fled. When they found him days later, he locked himself in a
basement furnace room and resisted arrest.

¶3 The State filed a criminal complaint in Milwaukee County case No.
2013CF4277, charging As-Saffat with child enticement and second-degree sexual
assault of a child. After the initial appearance, the circuit court dismissed the case
without prejudice because the complaint did not specify the address at which As-
Saffat committed the crimes.

¶4 The State reissued the charges in Milwaukee County case No.
2013CF4303. As-Saffat waived the preliminary hearing and was bound over for
trial. On the day that trial was to begin, the circuit court dismissed the case
without prejudice because the victim, who was residing out of state, was unable to
appear due to adverse weather conditions.

1
The Honorable Timothy G. Dugan presided over trial and entered the judgment of
conviction. The Honorable Jeffrey A. Wagner entered the order denying As-Saffat’s
postconviction motion.

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No. 2017AP2084-CR

¶5 The State reissued the charges again in Milwaukee County case No.
2014CF1066, along with two additional counts of obstructing or resisting an
officer. Following a preliminary hearing, As-Saffat was bound over for trial.

¶6 At the final pretrial hearing, on June 13, 2014, As-Saffat told the
circuit court that he wanted to represent himself. The court did not immediately
address As-Saffat’s request. It said, “I’ll tell you what we’re going to do, we’ll
finish the final pretrial. I don’t think we’ll have time to address that, so we’ll set it
for a hearing next week.” After the attorneys informed the court that they would
be unavailable at that time, the court indicated that it would find another date to
address As-Saffat’s request. It added, “You have a Constitutional right to
represent yourself, but I have to make that decision as to whether you’re capable
of doing so and I may have to do it on the morning of trial.”

¶7 The circuit court attempted to address As-Saffat’s request to
represent himself on the first day of trial, June 23, 2014. However, As-Saffat
refused to come to court and was eventually brought into the courtroom in his jail
clothes. As-Saffat would not fill out the waiver-of-counsel form or answer any of
the court’s questions about whether he was waiving counsel or was competent to
represent himself. Instead, he offered such nonsensical observations as, “Maritime
law is being forced upon me,” and “I am the authorized representative and the
legal beneficiary of this estate.” The court determined that As-Saffat was not
attempting to proceed pro se and could not proceed pro se.

¶8 The next day, As-Saffat again told the circuit court that he wanted to
represent himself. The court gave As-Saffat the waiver-of-counsel form, and he
filled it out. The court then conducted an extensive colloquy with As-Saffat.
Based upon that colloquy, the court did not believe that As-Saffat had made a

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No. 2017AP2084-CR

deliberate choice to proceed without counsel and was aware of the difficulties and
disadvantages of self-representation. Similarly, it did not believe that As-Saffat
was competent to represent himself, as he did not demonstrate a basic
understanding of the criminal justice system. Accordingly, it denied As-Saffat’s
request.

¶9 At trial, the jury viewed a surveillance video that showed As-Saffat
and the victim entering a motel room. It heard from the victim, who accused As-
Saffat of sexually assaulting her there. Likewise, it heard from a sexual assault
nurse, who examined the victim and concluded that her physical injuries were
consistent with sexual assault. The State also presented evidence of As-Saffat’s
evasive conduct after the assault. Additionally, it presented testimony from a
DNA analyst who analyzed samples taken from the victim and opined that As-
Saffat’s DNA was on the victim’s underwear, toilet tissue in her underwear, and in
her anus. The forensic program technician who initially screened the samples did
not testify.

¶10 Ultimately, the jury found As-Saffat guilty on all counts. The circuit
court imposed an aggregate sentence of thirty-five years of initial confinement and
ten years of extended supervision.

¶11 As-Saffat filed a postconviction motion, arguing, among other
things, that (1) he was improperly charged; (2) he was denied the right to self-
representation; and (3) he received ineffective assistance of counsel. The circuit
court denied the motion without a hearing. This appeal follows.

¶12 The first argument we address on appeal is As-Saffat’s contention
that he was improperly charged. According to As-Saffat, the State’s reissuance of

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No. 2017AP2084-CR

charges after dismissal of Milwaukee County case Nos. 2013CF4277 and
2013CF4303 violated WIS. STAT. § 970.04 (2017-18).2

¶13 WISCONSIN STAT. § 970.04 provides, “If a preliminary examination
has been had and the defendant has been discharged, the district attorney may file
another complaint if the district attorney has or discovers additional evidence.”
“This statute forbids reissuance of a complaint if the evidence presented at a
preliminary hearing was insufficient, unless the state comes forward with new or
previously unused evidence.” State v. Hoffman, 106 Wis. 2d 185, 196, 316
N.W.2d 143 (Ct. App. 1982). The application of a statute to a set of facts is a
question of law that we review de novo. Acuity v. Albert, 2012 WI App 87, ¶8,
343 Wis. 2d 594, 819 N.W.2d 340.

¶14 Here, we are not persuaded that WIS. STAT. § 970.04 applies. After
all, neither one of As-Saffat’s prior cases was dismissed at a preliminary hearing
because of insufficient evidence. Milwaukee County case No. 2013CF4277 was
dismissed before a preliminary hearing due to a technical error in the complaint.
Meanwhile, Milwaukee County case No. 2013CF4303 was dismissed at trial, after
As-Saffat had waived the preliminary hearing, due to the unavailability of the
victim. Given these differences, WIS. STAT. § 970.04 did not prevent the State
from reissuing charges against As-Saffat.

¶15 We next address As-Saffatt’s assertion that he was denied the right
to self-representation. In making this argument, As-Saffat does not challenge the
circuit court’s rulings on the subject at trial. Rather, he submits that the court

2
All references to the Wisconsin Statute are to the 2017-18 version.

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No. 2017AP2084-CR

erred by not immediately holding a hearing on his request at the final pretrial
hearing.

¶16 Defendants have the right to conduct their own defense under both
the United States Constitution and the Wisconsin Constitution. State v. Klessig,
211 Wis. 2d 194, 203, 564 N.W.2d 716 (1997). Whether a defendant’s
constitutional right to self-representation has been violated is a question of law
that we review de novo. State v. Darby, 2009 WI App 50, ¶13, 317 Wis. 2d 478,
766 N.W.2d 770.

¶17 We cannot say that As-Saffat’s right to self-representation was
violated by the circuit court’s failure to immediately hold a hearing on his request
to represent himself. As noted, the court determined that there was insufficient
time to do so at the final pretrial hearing. It tried to schedule another hearing the
following week and then, when that proved unsuccessful, resolved to address the
matter the first day of trial. The fact that As-Saffat chose to be uncooperative that
day was not the court’s fault. In any event, the court eventually denied the request
on the merits. There is no reason to believe that the court would have reached a
different decision had it addressed the request at the final pretrial hearing.

¶18 We next address As-Saffat’s complaint that he received ineffective
assistance of counsel. In particular, As-Saffat faults his trial counsel for failing to
call the forensic program technician who initially screened the samples taken from
the victim.

¶19 To establish a claim of ineffective assistance of counsel, a defendant
must show both that counsel’s performance was deficient and that such
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

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No. 2017AP2084-CR

687 (1984). A reviewing court need not address both prongs of the analysis if the
defendant makes an insufficient showing on either one. Id. at 697.

¶20 When a defendant pursues postconviction relief based on trial
counsel’s alleged ineffectiveness, the defendant must preserve trial counsel’s
testimony in a postconviction hearing. State v. Curtis, 218 Wis. 2d 550, 554-55,
582 N.W.2d 409 (Ct. App. 1998). However, a defendant is not automatically
entitled to a hearing upon filing a postconviction motion that alleges ineffective
assistance of counsel.

¶21 To earn a hearing on a postconviction motion, the defendant must
allege “sufficient material facts that, if true, would entitle the defendant to relief.”
State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. If the motion
alleges sufficient facts, a hearing is required. Id. If the motion is insufficient, if it
presents only conclusory allegations, or if the record conclusively demonstrates
that the defendant is not entitled to relief, the circuit court may exercise its
discretion in deciding whether to grant a hearing. Id. We review the court’s
discretionary decision under the deferential erroneous exercise of discretion
standard. Id.

¶22 We are not convinced that As-Saffat was entitled to a hearing on his
claim of ineffective assistance of counsel. To begin, As-Saffat did not present an
affidavit from the forensic program technician detailing what he would have said
had he been called. Moreover, there is no reason to believe that the technician’s
testimony would have helped the defense. As-Saffat makes much of the fact that
the technician’s report did not show the presence of semen on vaginal and anal
swabs from the victim. However, that same report revealed the presence of micro
sperm on a vaginal smear taken from vaginal swabs and on an anal smear taken

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No. 2017AP2084-CR

from anal swabs. Thus, there was genetic material to test,3 and the DNA analyst
was able to link what she tested to As-Saffat.4 Given these facts, as well as the
other strong evidence of As-Saffat’s guilt, there is no reasonable probability that
As-Saffat was prejudiced by counsel’s alleged error.

¶23 Finally, we address As-Saffat’s argument that he is entitled to a new
trial in the interest of justice. He asks for this relief pursuant to WIS. STAT.
§ 752.35, which allows this court to reverse a judgment “if it appears from the
record that the real controversy has not been fully tried, or that it is probable that
justice has for any reason miscarried.”

¶24 We exercise our discretionary power to grant a new trial
“infrequently and judiciously.” State v. Ray, 166 Wis. 2d 855, 874, 481 N.W.2d
288 (Ct. App. 1992). We have already determined that no error occurred as to the
issues discussed above. We are not persuaded that the real controversy was not
fully tried or that justice miscarried. As a result, we decline to order a new trial
pursuant to WIS. STAT. § 752.35.

3
As-Saffat questions the DNA analyst’s ability to conduct some of her testing by citing
the following language from the technician’s report: “2 [anal] swabs consumed for extraction, no
sample remaining.” As noted by the circuit court, that language does not necessarily mean that
there was no sample left for the DNA analyst to test. Rather, it “may mean simply that there was
no additional sample remaining for further testing; not that the samples [the technician] extracted
were consumed during the extraction process.”
4
At one point in her testimony, the DNA analyst misspoke and inserted the victim’s last
name in place of As-Saffat’s. That misstatement does not undermine her conclusion, as reflected
elsewhere in her testimony and report, which linked the DNA that she tested to As-Saffat.

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No. 2017AP2084-CR

¶25 For these reasons, we affirm.5

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

5
To the extent we have not addressed an argument raised by As-Saffat on appeal, the
argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261
N.W.2d 147 (1978).

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