Hicks v. Nunnery

Attorney "_new">Willie Nunnery appeals a judgment entered against him in favor of a former client, Anthony Hicks. A jury found Nunnery had been negligent in his representation of Hicks in a criminal matter, and it awarded Hicks $2,606,950 in damages. Nunnery claims that:(1)the trial court erred in failing to grant his motion for judgment notwithstanding the verdict; (2)he is entitled to judgment in his favor because Hicks failed to prove his innocence; (3)the evidence was insufficient to support the jury's answers on causation; and (4)Nunnery is entitled to a new trial because of errors at trial or in the verdict, or alternatively, in the interests of justice.

2. We reject all but one of Nunnery's claims of error. We conclude the trial court erred in not asking the jury to determine whether Hicks was innocent of the offenses of which he was convicted. Accordingly, we reverse the appealed judgment and remand for a trial on the limited issue of Hicks's innocence.

BACKGROUND

3. Hicks's legal malpractice claim arose out of Nunnery's representation of him in criminal proceedings which resulted in Hicks being convicted and imprisoned for robbery, burglary and sexual assault. We reversed Hicks's conviction in State v. Hicks (Hicks I), 195 Wis.2d 620, 536 N.W.2d 487 (Ct. App. 1995), concluding that he had been deprived of effective assistance of counsel. The supreme court affirmed our decision, but on other grounds. State v. Hicks (Hicks II), 202 Wis.2d 150, 549 N.W.2d 435 (1996) (concluding Hicks was entitled to a new trial in the interests of justice because the real controversy was not fully tried). Hicks was subsequently released after spending more than four years in prison and the State dismissed all charges against him.

4. The following summary of background facts from the underlying criminal proceeding is largely taken from our opinion in Hicks I, 195 Wis.2d at 623-29. D.F., a white female, identified Hicks as her assailant from an eight-man line-up two days after she was sexually assaulted in her apartment. At trial, D.F. testified that she heard a knock on her apartment door, looked through the peephole for approximately ten seconds, and saw a black man who told her that he was her upstairs neighbor. The man asked to use her telephone because his was broken. D.F. let the man into her apartment after which he sexually assaulted her and robbed her of $10. According to D.F., the assailant was in her apartment between 7:25 a.m. and 7:55 a.m. D.F. also testified that, prior to this incident, no black male had ever been in her apartment and that only once, approximately one-and-one-half years before the assault, a black female had been in her apartment to borrow a blanket. Hicks stipulated that he lived in the same apartment complex as D.F., and that the two apartments were a 90-second walk from each other.

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¶2. We reject all but one of Nunnery's claims of error. We conclude the trial court erred in not asking the jury to determine whether Hicks was innocent of the offenses of which he was convicted. Accordingly, we reverse the appealed judgment and remand for a trial on the limited issue of Hicks's innocence.

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"_new">Dr. Charlotte Word of Cellmark Diagnostics.

C.L.