State v. Burton

• Decision Date: 31 October 2007
• Docket Number: No. 2006AP2438-CR.,No. 2006AP2436-CR.,No. 2006AP2437-CR.,2006AP2436-CR.,2006AP2437-CR.,2006AP2438-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas C. BURTON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

743 N.W.2d 152

2007 WI App 237

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas C. BURTON, Defendant-Appellant.

No. 2006AP2436-CR.

No. 2006AP2437-CR.

No. 2006AP2438-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs September 12, 2007.

Opinion Filed October 31, 2007.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy A. Provis of Port Washington.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Michael J. Losse, assistant attorney general.

Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.

BROWN, C.J.

¶ 1 Thomas C. Burton appeals his convictions stemming from three shootings in Racine. He objects here, as he did in the trial court, to the testimony of a "gang expert" called by the State. The State called the expert for two stated reasons: to explain why certain witnesses might change their stories between the time of the incident and the trial, and to explain that the shootings might have been motivated by Burton's desire to regain respect that he had lost when one of the shooting victims allegedly robbed him and took his pants. Burton argues that absent evidence that he was himself a gang member, the expert's testimony should not have been allowed. We reverse and remand for a new trial. The expert's testimony insinuated, without any basis, that Burton was a part of the gang culture, if not actually a member of a gang. It recast the case as being about gang retaliation or gang culture, anathema to the reasonable citizen, when there was no evidence that the shootings were gang crimes. Not only that, the testimony also purported to explain away the inconsistencies of witnesses simply because gangs infested the neighborhood in which the witnesses lived. If this had any probative value, which we doubt, it was far outweighed by prejudice. Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. This case must be retried based on facts, rather than insinuation or stereotyping.

¶ 2 Thomas Burton was tried on fourteen charges arising from three shootings on three separate days. In one incident, Burton allegedly approached a car in which Phillip Bowens was a passenger and fired several shots into the vehicle, hitting Bowens in the thigh. A few weeks later, Burton allegedly fired a gun at Donnis Jones while the two were standing on a public street in the same neighborhood; a ricocheting bullet hit Jones in the leg. One week later, Burton allegedly fired several shots at unknown persons who may also have been shooting at him; one of the bullets struck a young girl in the thigh.

¶ 3 At the trial, various witnesses to the shootings testified. Some of these witnesses stated that they did not see Burton or did not see him with a gun, though police officers testified that these witnesses had stated to the contrary immediately after the shootings. Donnis Jones testified that he was shot by a young man who had attempted to rob him and that while he did not know the shooter, he was certain that it was not Burton. Jones had earlier told police that he knew the person who shot him as "T" and also that "T" had fired several shots at the house Jones fled to immediately after being shot. The State adduced some testimony to the effect that Bowens had earlier robbed Burton of money and the pants he was wearing. Neither Bowens nor Burton testified.

¶ 4 On the last day of its case-in-chief, the State called Detective William Warmington of the City of Racine Police Department. The State had apparently notified Burton of the broad themes of Warmington's expected testimony, and Burton asked the court to conduct a voir dire outside the presence of the jury to determine whether the testimony would be admissible. The State responded that though Warmington could not classify Burton as a gang member, he would be able to label "some of the other people involved in this trial" as members of the Vice Lords gang. This would be relevant

to put a context on who some of these people are we're dealing with ... why this culture wants to cooperate with us, why they don't, why their stories are different on the street than when they hit a courtroom.... They talk to officers one way and ... they testify in the courtroom in another way.

¶ 5 The State further argued that the expert could testify "to the intent on why the people did what they did.... This goes to the gang retaliation ... that we're dealing with, goes to Mr. Burton's intent and retaliating against Phillip Bowens for a prior confrontation."

¶ 6 Burton's attorney argued that allowing the expert to identify Bowens or Jones as Vice Lords would "be an impermissible comment on their character" and that it would unfairly reflect on Burton. He further questioned whether it would be helpful to the jury to have an expert testify as to the behaviors of gang members. The court ruled that Warmington could testify, stating that "if there is a motion to bar the witness, it is denied.... If the testimony of the witness goes beyond ... being offered for the purpose of intent as an element or dealing with truthfulness, then I think we're in dangerous territory."

¶ 7 Detective Warmington then took the stand. After describing his credentials and experience, he discussed his interactions with Donnis Jones:

Q Do you remember an opportunity to speak with Mr. Jones regarding the case?

A Yes, I did.

Q And was he cooperative with you?

A No.

Q Did he assist you in the prosecution at all?

A No. He flat out said he didn't want to do anything with it.

Q Did you find that unusual?

A No, I didn't.

Q Why not?

A Based on the area of the shooting, the activity up in that area it's not uncommon for people that are victims or witnesses in shootings to not cooperate or want to have anything to do with the police department.

Q Why don't they want to have anything to do with the police department?

A For some it's fear of retaliation, for others it's they in some way, shape or form participated in something that led to them being shot; they didn't want that to be found.

¶ 8 The State then, over Burton's objection of lack of factual foundation, adduced Warmington's testimony that Jones had "a lot" of police contacts and associated with three known Vice Lords. Then the inquiry shifted back to the issue of gang members' cooperation with police:

Q Now, you indicated that witnesses may not want to cooperate, like Mr. Jones did not want to cooperate with you. Do they use police in certain situations by giving them some information but then withdrawing it or how does that work?

A Well, they use the police a lot of times they get caught in a situation where the police are there and they make a statement, I refer to it as kind of an excited utterance where right after an incident happens they're kind of excited, kind of wound up, they will talk to the police and they will say stuff. Later on down the road they'll try to withdraw those statements or deny that they made them.

Q You said later down the road they will try and withdraw the statements, is that to the police department or to prosecutors?

A Both.

Q Both. Do they usually cooperate when they testify?

A No.

Q Why not, do you know?

A A lot of times it's because they want to settle the issue themselves. Lot of times it's because if they're seen as cooperating ... they will be referred to as snitches. They will be accused of working for the police department or the DA's office and not only will they lose the respect of their fellow gang members, but they could also face some physical retribution because of that.

The expert later added that an excited utterance is "[u]sually ... a very truthful statement."

¶ 9 The prosecutor also asked the expert about gang members' views regarding respect:

Q Is it important for them to have respect or how is that an issue?

A Respect is probably one of the biggest things that the gang members whether Vice Lords, Latin Kings, La Familia respect is very high on their needs list.

Q And how would a member lose respect?

A If they were to be publicly embarrassed. If they were to you would call it be disrespected. They could be, you know, disrespected by the police, they can be disrespected by a member of their own gang or by a citizen. And then they would feel the need to gain that respect back.

Q Would that be through retaliation?

A That could be through retaliation, through physical confrontation, a fight, a shooting.

¶ 10 Burton claims on appeal that the admission of "gang expert" testimony violated his due process rights. The State responds that we should not consider Burton's claim because he has waived it in two ways: first, because he made limited contemporaneous objections to the detective's testimony; second, because he made no due process claim before the trial court.

¶ 11 As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury's presence. The circuit court denied Burton the requested voir dire¹ and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton's intent. Burton was not obliged to restate his objections in the jury's presence and thereby emphasize the testimony he believed prejudicial. See State v. Bergeron, 162 Wis.2d 521, 527-29, 470 N.W.2d 322 (1991).²

¶ 12 As to Burton's failure to raise a due process claim below, though Burton now states his claim in Constitutional language, his argument here is essentially the same as the one he made in the trial court: that Warmington's testimony was highly and unfairly prejudicial and that its probative value was very limited. Though Burton identifies the Constitution as the grounds of his appeal, the line of case...