State v. Cameron

• Decision Date: 07 June 2016
• Docket Number: No. 2015AP1088–CR.,2015AP1088–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Robert Lavern CAMERON, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

370 Wis.2d 661

885 N.W.2d 611

STATE of Wisconsin, Plaintiff–Respondent,

v.Robert Lavern CAMERON, Defendant–Appellant.^†

No. 2015AP1088–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 1, 2016.

Opinion Filed June 7, 2016.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Matthew S. Pinix of Law office of Matthew S. Pinix, LLC, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Jeffrey J. Kasel, assistant attorney general.

Before CURLEY, P.J., KESSLER and BRASH, JJ.

KESSLER, J.

¶ 1 Robert Lavern Cameron appeals a judgment of conviction, following a jury trial, of armed robbery, first-degree intentional homicide, attempted first-degree intentional homicide, bail jumping, and possession of a firearm by a felon. Cameron also appeals the order denying his postconviction motion for a new trial. On appeal, Cameron argues that: (1) the trial court erred when it failed to hold a Daubert¹ hearing, sua sponte, before allowing an intelligence analyst to give expert testimony about cell phone mapping; (2) the State's closing argument constituted plain error because “the prosecutor vouched for the credibility of a key state's witness”; (3) trial counsel was ineffective; and (4) the real controversy was not fully tried. (Capitalization omitted.) We affirm.

BACKGROUND

¶ 2 On June 19, 2012, an Information charged Cameron with: (1) armed robbery; (2) attempted first-degree intentional homicide, with the use of a dangerous weapon; (3) first-degree intentional homicide, with the use of a dangerous weapon; (4) bail jumping; and (5) felon in possession of a firearm. The charges stemmed from the shooting death of Russell Setum and shots taken at L.S., Setum's mother.

¶ 3 According to the facts adduced at trial, in the early morning hours of April 29, 2012, Setum met a female acquaintance at a Milwaukee gas station. When the acquaintance arrived at the gas station, she saw Setum speaking to a man who introduced himself as “Rico.” “Rico” was later identified as Nicholas Smith. Setum and his acquaintance made plans to go to L.S.'s home. Setum and his acquaintance drove to L.S.'s home in separate cars.

¶ 4 Setum called his mother while in route to her house and informed her that he was nearby. Setum's mother went outside to wait for him. When Setum parked outside of his mother's home, a man with a gun approached Setum and ordered Setum to take off his coat, shoes, and jeans. Setum complied. Setum's mother, who witnessed the robbery, begged the robber not to hurt her son; however, the robber shot Setum twice in the head and proceeded to shoot at L.S. The shooter hit L.S. twice in the foot, ultimately resulting in the amputation of that foot.

¶ 5 Setum's mother was unable to identify the shooter; however, a police investigation led to charges against Smith. Smith made inculpatory statements to police and also implicated Cameron in Setum's robbery and the shootings. Smith told police that he and Cameron saw Setum at a club and made plans to rob Setum. Smith and Cameron followed Setum to a gas station, and then to Setum's home, where Smith said he witnessed Cameron shoot Setum in the head and then shoot at Setum's mother multiple times. Smith agreed to testify against Cameron at trial, pursuant to a plea agreement.

¶ 6 At trial, the State also called Angela Rodriguez, an intelligence analyst at the Milwaukee High Intensity Drug Trafficking Area. On its witness list, the State named Rodriguez as an “Expert Witness as to Phone Tracking and Cell Phone Tower Data.” (Bolding omitted.) Rodriguez explained the process of cell phone location mapping as it pertained to activity from Cameron's cell phone and the phones of other relevant parties. Rodriguez also testified as to the timings of various calls from the relevant actors, including Cameron. The parties stipulated to the authenticity of the records, as the records were obtained from the relevant cell phone service providers. No objection was made to Rodriguez's status as an expert witness.

¶ 7 At the close of testimony, the State summarized the evidence against Cameron and made the following statement regarding Smith's testimony:

Ladies and Gentlemen, Nick Smith came in and he told you the truth. And it's true when he first was presented with an offer, a proffer agreement with no deals on the table he had to come in and tell us the truth. He didn't say at first. He didn't. He said he wasn't involved. He had to admit to his own involvement and eventually he did.

And yes, a deal has been made and you have been told about every aspect of that deal. But the problem is, Ladies and Gentlemen, when you have a case like this and people like Robert Cameron and Nick Smith in a case like this, the phone evidence while it is corroboration and can tell you if someone is telling you the truth like it does with Nick Smith, you need a witness. And Ladies and Gentlemen, Nick Smith, yes he was given a deal but he told you the truth.

Trial counsel did not object.

¶ 8 The jury found Cameron guilty as charged. Cameron filed a postconviction motion, arguing that he was entitled to a new trial because: (1) the trial court “failed in its gatekeeping role when it allowed Rodriguez to testify as an expert without first requiring proof that her testimony reflected scientific knowledge”; (2) the State's closing argument amounted to plain error; and (3) counsel was ineffective for failing to make a Daubert challenge to Rodriguez's testimony and for failing to object to the part of the State's closing argument in which the State “vouched for the credibility of [its] key witness.” (Capitalization omitted.)

¶ 9 The postconviction court denied the motion. This appeal follows.

DISCUSSION

¶ 10 On appeal, Cameron reiterates the arguments made in his postconviction motion and also contends that the real controversy of his case has not been fully tried.²

Standard of Review.

¶ 11 Because Cameron did not object either to Rodriguez's testimony or to the State's closing statement, Cameron must rely on the doctrine of plain error, which allows appellate courts to review errors waived by a party's failure to timely object. This doctrine is recognized in WIS. STAT. § 901.03(4) (2013–14).³ The statute provides: “Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.” Id. Our supreme court explained the doctrine of plain error in State v. Jorgensen, 2008 WI 60, 310 Wis.2d 138, 754 N.W.2d 77 :

Plain error is error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time. The error, however, must be obvious and substantial. Courts should use the plain error doctrine sparingly. For example, where a basic constitutional right has not been extended to the accused, the plain error doctrine should be utilized. Wisconsin courts have consistently used this constitutional error standard in determining whether to invoke the plain error rule.

However, the existence of plain error will turn on the facts of the particular case. The quantum of evidence properly admitted and the seriousness of the error involved are particularly important. Erroneously admitted evidence may tip the scales in favor of reversal in a close case, even though the same evidence would be harmless in the context of a case demonstrating overwhelming evidence of guilt.

Id., ¶¶ 21–22 (quoted sources, internal citations, and multiple sets of quotation marks omitted). Thus, for Cameron to prevail on his claims involving the lack of a Daubert determination and the State's closing argument, we must find that each constituted a plain error.

The Trial Court was not Required to Conduct a Sua Sponte Daubert Hearing.

¶ 12 Cameron argues that the trial court failed in its function as a “gatekeeper” when it allowed Rodriguez to testify as an expert, despite Cameron's lack of an objection. In essence, Cameron contends that the trial court should have held a sua sponte Daubert hearing. Both federal and state courts have held that the “[f]ailure to raise a Daubert challenge at trial causes a party to waive the right to raise objections to the substance of expert testimony post-trial.” See Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1113 (9th Cir.2012) ; Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir.1996) (“the appropriate time to raise Daubert challenges is at trial. By failing to object to evidence at trial and request a ruling on such an objection, a party waives the right to raise admissibility issues on appeal.”); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998) (“To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered.”).

¶ 13 Cameron's argument fails for multiple reasons. First, courts have expressly rejected Cameron's claim that the trial court's obligation to act as a gatekeeper under Daubert requires it to conduct a Daubert admissibility analysis even if there is no objection to the testimony:

It is without question that Rule 702 of the Federal Rules of Evidence imposes an obligation on trial courts to ensure that all expert testimony is reliable. The trial court, in performing its “gatekeeping” function, has discretion to choose the manner in which the reliability of an expert's testimony is appraised. However, the trial court has no discretion to abandon its role as gatekeeper. When a party objects to an expert's testimony, the court must adequately demonstrate by specific findings on the record that it has performed its duty.... Absent an objection, the trial judge is not required to announce for the record that the expert witness's testimony is based on reliable methodology. A defendant must still make a timely objection to preserve error for appeal .... If the defendant fails to object

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