State v. Kurt B. Parks

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.
September 28, 2021
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. 2020AP1530-CR Cir. Ct. No. 2017CF3793

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KURT B. PARKS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JANET C. PROTASIEWICZ, 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. Kurt B. Parks appeals his judgment of conviction
for possession of narcotic drugs (heroin), and felony bail jumping, as well as an
No. 2020AP1530-CR

order of the trial court denying his postconviction motion. Parks argues that his trial
counsel was ineffective in a number of ways, all of which were rejected by the trial
court. Upon review, we affirm.

BACKGROUND

¶2 In August 2017, officers from the Milwaukee Police Department
conducted a traffic stop of a vehicle for seatbelt and registration violations.
According to the complaint, when the officers made contact with the driver—later
identified as Parks—they observed that he was holding a knife, and smelled the odor
of marijuana coming from his vehicle. The officers conducted a search of Parks’
vehicle.

¶3 Just prior to making contact with Parks, the officers had observed him
“making movements toward the center console area” of the vehicle. During their
search of the vehicle, the officers saw “a long piece of duct tape folded in half” that
was under the cup holder in the center console. Upon inspection of the duct tape,
the officers found seventy-nine bindles of what they suspected was heroin.

¶4 Parks was taken into custody and charged with possession with the
intent to deliver the heroin in an amount of more than ten grams but less than fifty
grams. He was also charged with felony bail jumping because at that time he was
out of custody on bond for a separate offense.

¶5 The matter proceeded to a jury trial held at the end of February 2018.
The jury convicted Parks on a lesser-included crime of possession of heroin, and the
bail jumping charge. Parks was sentenced in March 2018 to a global sentence of
four and one-half years of initial confinement and five years of extended
supervision.

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No. 2020AP1530-CR

¶6 Parks filed a postconviction motion in May 2020, arguing that his trial
counsel was ineffective in several ways. First, Parks asserted that counsel failed to
bring a motion to suppress the evidence from the traffic stop and search, based on
“inconsistencies” between the testimony of one of the arresting officers regarding
the traffic stop and body camera video from the incident. Specifically, Parks
contended that the video indicated that “the traffic stop was initiated before [the
officer] had enough time to adequately conduct the registration check”; that it does
not show Parks making movements toward the center console when the officers
approached his vehicle; and that it shows Parks with an ice cream bar in his hand as
opposed to a knife, although he concedes that a knife was found in the vehicle. Parks
also asserted that the testimony of the officer did not include any information
relating to the smell of marijuana coming from Parks’ vehicle, as stated in the
complaint.

¶7 During the trial, portions of the body camera video were shown by
Parks’ trial counsel to demonstrate these alleged inconsistencies. In fact, counsel
recalled Officer Robert Gregory on the third day of the trial for the express purpose
of showing the body camera video footage to the jury. Additionally, counsel raised
related arguments in a motion for judgment notwithstanding the verdict, alleging
that Officer Gregory “gave false testimony” about the “critical facts” of the traffic
stop, particularly relating to the knife. The trial court soundly rejected Parks’
arguments relating to this issue in denying that motion, noting the seriousness of the
allegations made regarding the truthfulness of the officer’s testimony: “I know
you’re indicating that body camera demonstrated again that the officer was not
being truthful. Quite frankly, I don’t think that the body cam indicated that any of
the officers were not being truthful. I reject that claim.”

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No. 2020AP1530-CR

¶8 In its decision on Parks’ postconviction motion, the trial court
determined that a suppression motion based on the alleged inconsistencies in the
body camera video argument would not have been successful. The court observed
that there were two lawful bases for the traffic stop—the registration violation and
the seatbelt violation. It further stated that the officer’s testimony that he observed
Parks making movements toward the center console and saw a knife in his hand
warranted a protective search of the vehicle. Therefore, the court rejected Parks’
ineffective assistance claim because his trial counsel could not be found to be
deficient for failing to bring a motion that would not have been successful.

¶9 Additionally, Parks argued in his postconviction motion that his trial
counsel was ineffective for failing to bring a suppression motion relating to
statements Parks made during a phone call to his aunt while he was in custody, when
an officer was present, on the ground that this was a Miranda1 violation. During
the trial, Parks’ trial counsel objected to the admission of these statements through
testimony of the officer who heard the conversation. Counsel asserted that after
being given his Miranda rights, but prior to making the phone call, Parks had
indicated that he did not want to make a statement. The officer then asked Parks if
there was anything else he needed, and at that point Parks requested to make the
phone call. The officer allowed Parks to use his cell phone, and was present while
Parks made the call to his aunt—using the speaker phone function—and discussed
the reason for his arrest and the evidence against him.

1
See Miranda v. Arizona, 384 U.S. 436 (1966). In his postconviction motion, Parks also
referenced State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965), regarding
the determination of the voluntariness of a confession, as well as Rhode Island v. Innis, 446 U.S.
291 (1980), as it relates to what constitutes a custodial interrogation under Miranda.

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No. 2020AP1530-CR

¶10 Parks’ trial counsel argued that the officer should have known Parks
would discuss the case on the phone, and that making such a phone call was
“reasonably likely to elicit an incriminating response.” The trial court disagreed,
noting that Parks’ request to make the phone call could have been for a number of
different reasons, such as a request for bail or making arrangements for an attorney,
and that the officer was not a “mind reader.” Thus, the trial court determined that
this was not a Miranda violation and allowed testimony regarding Parks’ statements
during the phone call to be elicited from the officer.

¶11 In considering the ineffective assistance claim relating to this issue
presented by Parks in his postconviction motion, the trial court rejected Parks’
argument that a suppression motion on this issue should have been brought pretrial.
The court reasoned that, again, such a motion would not have been successful, and
therefore counsel was not deficient for failing to bring it.

¶12 Parks further asserted in his postconviction motion that his trial
counsel was ineffective for failing to “timely object” to the State’s closing argument
when it “comment[ed] on [his] right to remain silent.” This claim is also related to
the statements made by Parks during his phone call with his aunt; specifically, Parks
asserted that the State argued in its closing that Parks never indicated to his aunt that
the drugs found in his vehicle were not his.

¶13 Trial counsel objected during the State’s closing statement, and later
argued the basis for the objection on the record, moving for a mistrial. The trial
court denied that motion, stating that it believed that the State was commenting on
a statement that was already in evidence, and further, that even if it was an error, it
was harmless.

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No. 2020AP1530-CR

¶14 In its decision on Parks’ postconviction claim on this issue, the trial
court pointed out that Parks’ trial counsel “not only objected to the State’s closing
argument, but moved for a mistrial on that basis.” Additionally, counsel also raised
this issue in the motion for judgment notwithstanding the verdict. Therefore, the
trial court rejected Parks’ claim of ineffective assistance on this issue as “plainly
frivolous.”

¶15 Parks also argued that the cumulative effect of his trial counsel’s
errors resulted in prejudice to his defense. The trial court rejected this claim based
on its rejection of Parks’ other claims. It therefore denied Parks’ postconviction
motion without a hearing. This appeal follows.

DISCUSSION

¶16 As noted above, the claims raised by Parks in his postconviction
motion are related to issues that were raised by trial counsel either during Parks’
trial or in his motion for judgment notwithstanding the verdict—or both—and are
now being presented under the ineffective assistance of counsel rubric. To evaluate
Parks’ claims of ineffective assistance, we apply the familiar two-prong test
described in Strickland v. Washington, 466 U.S. 668 (1984). See State v.
Roberson, 2006 WI 80, ¶28, 292 Wis. 2d 280, 717 N.W.2d 111. To prevail on such
a claim, a defendant must prove both that trial counsel’s performance was deficient
and that the deficiency prejudiced the defense. See Strickland, 466 U.S. at 687. To
prove deficiency, the defendant must show that trial counsel’s actions or omissions
were “professionally unreasonable[.]” Id. at 691. To prove prejudice, the defendant
must show that trial counsel’s errors “actually had an adverse effect on the defense.”
Id. at 693.

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No. 2020AP1530-CR

¶17 When we review a claim of ineffective assistance of counsel, we
uphold the trial court’s findings of fact unless they are clearly erroneous. See
State v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d 466, 634 N.W.2d 325.
However, whether the facts satisfy the deficiency and prejudice components are
questions of law that we review de novo. See id. The defendant “must prevail on
both parts of the test to be afforded relief,” see State v. Allen, 2004 WI 106, ¶26,
274 Wis. 2d 568, 682 N.W.2d 433, and “[a] court need not address both components
of this inquiry if the defendant does not make a sufficient showing on one,” see
State v. Smith, 2003 WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854.

¶18 A claim of ineffective assistance of counsel requires that a
postconviction evidentiary hearing be held “to preserve the testimony of trial
counsel.” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
However, a defendant is not automatically entitled to an evidentiary hearing relating
to his or her postconviction motion. State v. Bentley, 201 Wis. 2d 303, 309-10, 548
N.W.2d 50 (1996). Rather, the trial court is required to hold an evidentiary hearing
only if the defendant has alleged “sufficient material facts that, if true, would entitle
the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14. This is a question of law that
we review de novo. Id., ¶9.

¶19 If, on the other hand, the postconviction motion “does not raise facts
sufficient to entitle the movant to relief, or presents only conclusory allegations, or
if the record conclusively demonstrates that the defendant is not entitled to relief,”
the trial court, in its discretion, may either grant or deny a hearing. Id. We will
uphold such a discretionary decision if the trial court “has examined the relevant
facts, applied the proper legal standards, and engaged in a rational decision-making
process.” Bentley, 201 Wis. 2d at 318.

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No. 2020AP1530-CR

¶20 We first review Parks’ argument that his trial counsel was ineffective
for failing to file a motion to suppress the evidence from the traffic stop based on
the alleged “inconsistencies” between the arresting officer’s testimony and body
camera video from the incident. Although there was no pretrial motion brought
regarding this issue, it was raised by Parks’ trial counsel during the trial and in his
motion for judgment notwithstanding the verdict, as discussed above.2

¶21 When the trial court rejected Parks’ arguments regarding this issue in
his motion for judgment notwithstanding the verdict, it stated that the jury had
assessed the credibility of the witnesses, including Officer Gregory, in rendering its
verdict. Indeed, “[i]t is the function of the trier of fact, and not of an appellate court,
to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” State v. Poellinger, 153
Wis. 2d 493, 506, 451 N.W.2d 752 (1990).

¶22 Additionally, in its decision denying Parks’ postconviction motion,
the trial court restated its rejection of Parks’ argument that the body camera footage
demonstrates that Officer Gregory’s testimony was untruthful. In our review, we
accept the trial court’s factual findings, as well as its credibility determinations,
unless they are clearly erroneous. See State v. Jenkins, 2007 WI 96, ¶33, 303
Wis. 2d 157, 736 N.W.2d 24. A finding is clearly erroneous if it is “contrary to the
great weight and clear preponderance of the evidence.” State v. Turner, 136 Wis.

2
Parks argues that his trial counsel failed to show body camera video from “the State’s
principal witness” during his testimony. It appears he is referring to Officer Gregory; however,
Officer Gregory’s body camera video was in fact shown during the trial by Parks’ trial counsel, and
counsel questioned Officer Gregory extensively regarding what was depicted in it. Furthermore,
trial counsel also showed body camera video from Officer Gregory’s partner, and questioned
Officer Gregory about that as well.

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No. 2020AP1530-CR

2d 333, 343, 401 N.W.2d 827 (1987). Based on our review of the record, Parks has
not established that the findings relating to the body camera video were clearly
erroneous.3

¶23 Furthermore, the trial court stated in its decision denying Parks’
postconviction motion that because there was evidence of lawful bases for both the
initial stop as well the protective search of Parks’ vehicle, a pretrial motion to
suppress would not have been successful. The record supports this determination,
and trial counsel cannot be deemed to be ineffective for failing to make a motion
that would have been denied. See State v. Berggren, 2009 WI App 82, ¶21, 320
Wis. 2d 209, 769 N.W.2d 110. Therefore, this claim fails.

¶24 Parks next argues that his trial counsel was ineffective for failing to
submit a pretrial motion to suppress statements he made during the phone call to his
aunt while he was in custody. As discussed above, this issue also arose during the
trial, when Parks’ counsel objected to the admission of the testimony of the officer
who heard Parks’ phone conversation on the ground that it was a Miranda violation,
with the trial court rejecting that argument and allowing the testimony.

¶25 In considering this issue when presented as an ineffective assistance
claim in Parks’ postconviction motion, the trial court again found that even if this
had been presented as a pretrial motion as opposed to an objection during trial, it

3
The State contends that the body camera video was never entered into evidence, and
therefore is not part of the record. We, too, were unable to locate the video recording in the record.
“In the absence of a complete record, we presume the missing record supports the [trial] court’s
decision.” Joseph Hirschberg Revocable Living Tr. v. City of Milwaukee, 2014 WI App 91,
¶12 n.5, 356 Wis. 2d 730, 855 N.W.2d 699. Furthermore, Parks did not file a reply brief, and thus
did not refute that contention. See State v. Alexander, 2005 WI App 231, ¶15, 287 Wis. 2d 645,
706 N.W.2d 191 (“Arguments not refuted are deemed admitted.”). Therefore, our review of this
issue is based on the description of the video provided by Officer Gregory during his testimony, as
set forth in the transcripts.

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No. 2020AP1530-CR

would not have been successful. In fact, this court has previously determined that
the statements of a defendant who called his wife while in custody “without asking
for privacy” and who “spoke at normal volume within the hearing range of the
officer standing nearby” were admissible. See State v. Uhlenberg, 2013 WI App
59, ¶¶5, 18, 348 Wis. 2d 44, 831 N.W.2d 799. Therefore, this ineffective assistance
claim also fails because, again, counsel cannot be deemed to be deficient for failing
to make a motion that would have been denied. See Berggren, 320 Wis. 2d 209,
¶21.

¶26 We next review Parks’ claim that his trial counsel was ineffective for
failing to timely object during the State’s closing argument because it improperly
commented on his right to remain silent. As the trial court pointed out in its decision
on Parks’ postconviction motion, not only did Parks’ trial counsel object to this
statement during the State’s closing argument, he subsequently made a record of the
objection and moved for a mistrial. Therefore, the trial court rejected this claim as
“plainly frivolous.”

¶27 On appeal, Parks continues to argue that his trial counsel failed to
timely object to the State’s closing argument. That contention is clearly not
supported by the record. Moreover, Parks does not develop this argument, except
to assert that it is demonstrative of cumulative prejudice.

¶28 We do not develop arguments for parties. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). Furthermore, Parks’ claim
of cumulative prejudice fails due to our determination that his ineffective assistance
claims fail on the merits. See State v. Thiel, 2003 WI 111, ¶61, 264 Wis. 2d 571,
665 N.W.2d 305 (stating that “each alleged error must be deficient in law … in order
to be included in the calculus for prejudice”).

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No. 2020AP1530-CR

¶29 Therefore, as the record conclusively demonstrates that Parks is not
entitled to relief on any of his claims of ineffective assistance of counsel, the trial
court did not err in denying Parks’ postconviction motion without a hearing. See
Allen, 274 Wis. 2d 568, ¶9. Accordingly, we affirm Parks’ judgment of conviction
as well as the order denying his postconviction motion.

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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