State Of Wis. v. Smith, Appeal No. 2009AP2867-CR

CourtCourt of Appeals of Wisconsin
PartiesState of Wisconsin, Plaintiff-Respondent, v. Anthony M. Smith, Defendant-Appellant.
Docket NumberAppeal No. 2009AP2867-CR,Cir. Ct. No. 2007CF3084
Decision Date03 March 2011

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

A. John Voelker

Acting Clerk of Court of Appeals

APPEAL from a judgment and an order of the circuit court for Milwaukee County: WILLIAM SOSNAY and DENNIS R. CIMPL, Judges. Affirmed.

Before Higginbotham, Sherman and Blanchard, JJ.

¶1 BLANCHARD, J. Anthony Smith appeals from the judgment entered on a jury verdict finding him guilty of armed robbery with threat of forceas a party to the crime, contrary to WIS. STAT. §§ 943.32(2) (2009-10)1 and 939.05, and the order denying his motion for postconviction relief.

¶2 Smith first asserts that the trial court erred in granting the State's motion to limit cross-examination of a witness called by the State, DBrittan Jackson, regarding Jackson's mental health. We conclude that the trial court did not erroneously exercise its discretion or violate Smith's confrontation right in limiting cross-examination of Jackson on relevance grounds. We also reject Smith's related claim that his attorney at trial was ineffective in failing to file a pretrial motion related to Jackson's mental health.

¶3 Smith also asserts that two categories of evidence—one involving tattoos worn by Smith, and the other involving "robbery activities"—were erroneously admitted because, considered together, they constituted improper character evidence. We decline to address this contention because Smith's argument fails to include relevant record citations, fails to develop a legal argument, and was forfeited by his failure to object at trial. For these same reasons, we decline to address a related argument based on alleged ineffective assistance of counsel.

¶4 Smith also contends that his trial counsel was ineffective in failing to object to testimony from witnesses called by the State regarding the nature of their convictions and pending robbery charges, which, he asserts, violated WIS. STAT. § 906.09. We conclude that failure to make this objection could not have beenprejudicial to Smith because such an objection would have been overruled as a matter of law.

¶5 Smith asks us to employ our discretionary power of reversal in the interest of justice based on the alleged errors referenced above, which we decline to do.

¶6 Finally, Smith argues that the evidence presented at trial was not sufficient to sustain his conviction, and that he should be resentenced because his sentence was unduly harsh. We reject each of these contentions, and therefore affirm the judgment and the order of the circuit court.

BACKGROUND
Overview

¶7 On an afternoon in August 2006, two people wearing masks held up Wong's Wok restaurant in Milwaukee at gunpoint and made a successful getaway. A witness testified to seeing the two people with their masks off immediately after the robbery and described them as young males. The only contested issue at trial was whether Smith was one of the two robbers.

¶8 The first of the two robbers to enter the restaurant, alleged by the State to be Smith, wore a ghoul mask and brandished a long gun. The second robber in the door, agreed by the parties at trial to be DBrittan Jackson, immediately followed Smith, wearing a bandana over the lower half of his face, with the hood of a hooded sweatshirt pulled up over the top of his head. The second robber pulled out a handgun after entering the restaurant. The two ran out the back door of the restaurant after forcing employees to give them access to money from cash drawers.

¶9 A police detective who happened to be across the street at the time suspected that a robbery of Wong's Wok was underway and went to investigate. The detective came face-to-face with the two robbers as they ran from the restaurant, and got a look at the long gun held by one of them. Nine days after the robbery, police confiscated a shotgun from Smith, which was admitted as an exhibit at Smith's trial. The detective testified that this shotgun was consistent in appearance with the long gun that he saw one of the robbers holding.

¶10 The State's position at trial was that a third man, Dannie Stallworth, was the getaway driver. The defense pointed to a lack of physical evidence tying Smith to the crime. Smith also attacked the credibility of witnesses called by the State who claimed to have knowledge of Smith's involvement in the robbery primarily on the grounds that the witnesses falsely incriminated Smith in order to win shorter sentences for themselves in their own pending criminal cases. The defense suggested to the jury that Jackson and Stallworth had committed the robbery, and that Jackson's brother, Bradshannon Wash, "cased" the restaurant before the robbery, then acted as the getaway driver.

Jackson Testimony

¶11 Because it is relevant to several issues on appeal, we briefly summarize the substance of Jackson's testimony as follows. Two friends of Jackson's, Scenario Richardson and Douglas Fritz, suggested that it would be easy to rob Wong's Wok. Jackson, Smith, Stallworth, and Jackson's brother, Bradshannon Wash, drove to Wong's Wok to commit the robbery. Richardson and Kevin Reynolds were in a second car in the same area at the same time and were on the telephone with the first group, talking about finding a store to rob.

¶12 Jackson pulled Stallworth's car into the alley behind Wong's Wok. Smith and Jackson retrieved a shotgun belonging to Smith and a.22-caliber handgun from the trunk of the car. Wash stayed in the car during the robbery. Jackson put a bandana on his face and Smith donned the ghoul mask.

¶13 Jackson, Smith, and Stallworth agreed that after the robbery, Stallworth would meet Jackson and Smith with the car nearby to make a getaway. Smith entered the store with the shotgun, followed by Jackson with the handgun. The two men jumped the counter, demanded money, and then grabbed cash from three cash registers after a worker unlocked them. After Jackson and Smith ran out the back door of Wong's Wok, a police detective "came out of nowhere" with a gun and ordered Smith and Jackson to freeze, but Smith and Jackson turned and ran through backyards and ended up meeting with Wash and Stallworth, who drove them away.2

DISCUSSION
I. Order Precluding Defense from Cross-examining JacksonRegarding His Prior Competency Proceeding and Non-Use of Medication, and Related Ineffective Assistance Claim.

¶14 Smith contends that the trial court3 erred in conditionally granting the State's motion in limine precluding Smith's attorney from cross-examining Jackson on two topics: (1) a hearing held nine months before Smith's trial in thepending case against Jackson regarding Jackson's competency to stand trial as a criminal defendant for his role in the Wong's Wok armed robbery, and (2) Jackson's history of failing to take medications previously prescribed for mental illness, which was an issue that arose in the earlier competency hearing.

A. Court's Ruling on Mental Health Motion In Limine

¶15 Before Jackson's testimony, the State moved for an order prohibiting defense counsel from cross-examining Jackson "on the issue of his competence or alleged lack of competency or his various medications." The State's motion focused on the earlier proceeding in Jackson's own criminal case, held pursuant to WIS. STAT. § 971.14, addressing Jackson's competency to stand trial as Smith's co-defendant. The same trial judge presiding over Smith's trial presided over the earlier competency proceeding, at which the court had found Jackson competent to stand trial based in part on a report and recommendation from a psychiatrist.

¶16 The psychiatrist reported that Jackson was competent to stand trial, and made the following observations:" [Jackson's] [t]hought processes were goal-directed. Thought content revealed no evidence of current delusions, hallucinations..... Cognition was grossly intact. Intelligence is below average." Regarding medication, the psychiatrist reported that Jackson had told the psychiatrist that Jackson had been treated with medications for Attention Deficit Disorder and Bipolar Disorder, but that Jackson had not taken any medications since his incarceration three weeks earlier. The psychiatrist reported that, although Jackson "has been unmedicated for the last three weeks, he demonstrated no symptoms of mania or substantial depression and did not demonstrate difficulties with hyperactivity, impulsivity or substantial attentional difficultiesduring this evaluation that rose to a level of severity that interfered with a productive evaluation."

¶17 Jackson's mother testified at the competency hearing that, with her help, Jackson had been current with his medications prior to his arrest, but after his arrest he stopped taking medications. She testified that police had told her following Jackson's arrest that Jackson had to be taken to a hospital because Jackson was "flipping out on them and he needed his medication." During that period, she testified, Jackson was acting "zoned out" and told her that he was hearing voices.

¶18 At Smith's trial, nine months later, defense counsel objected to the State's motion in limine on the grounds that, if Jackson had been prescribed medications that he was no longer taking at the time of trial, that could affect Jackson's ability "to remember things, [and to] count [sic-recount?] things." For purposes of our analysis, we will assume that the attorney's objection was shorthand for an argument that the order proposed by the State jeopardized Smith's ability to test through cross-examination Jackson's capacities to (1) recall events from the time of the armed robbery,...

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