State v. Jones
| Decision Date | 07 February 2011 |
| Docket Number | No. 2009AP2835-CR.,2009AP2835-CR. |
| Citation | 2010 WI App 133,791 N.W.2d 390,329 Wis.2d 498 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Christopher D. JONES, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Amelia L. Bizzaro of Henak Law Office S.C., Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Thomas J. Balistreri, assistant attorney general.
A non-party brief was filed by Jerome F. Buting of The Innocence Network, Brookfield.
Before FINE, KESSLER and BRENNAN, JJ.
¶ 1 Christopher D. Jones appeals the judgment entered on jury verdicts convicting him of first-degree reckless homicide while armed, see Wis. Stat. §§ 940.02(1) & 939.63, and attempted armed robbery with the use of force, see Wis. Stat. §§ 943.32(2) & 939.32, in connection with the shooting of Brandon Sprewer somewhat after 10 p.m. on September 5, 2006, at the corner of 91st and Silver Spring Drive in Milwaukee. Jones raises many issues on appeal, which we discuss and reject in Part II of this opinion. Accordingly, we affirm.
¶ 2 Shortly before he was shot, Sprewer was walking near 91st and Silver Spring Drive with Edward Hervey, a friend with whom he had played in various Special Olympics sports. Hervey testified at the trial that shortly before Sprewer was shot, Jones and another male asked them if they wanted some "Ecstasy or some weed." The jury later learned that the other personwith Jones was then fifteen-year-old Demonta Gray, who also testified at the trial. Hervey told the jury that he did not know what Ecstasy was, and that they did not agree to buy drugs from Jones and Gray. Hervey and Sprewer then walked in different directions, and Jones and Gray followed Sprewer. Hervey testified that he saw Jones shoot Sprewer: "I seen Jones pull out a gun and shot my friend right in front of me."
¶ 3 Hervey's account of the shooting was confirmed by Jada Carter, a citizen witness who, oddly enough, had previously worked with Sprewer at a store. She told the jury that she was in the area the night of the shooting and saw Jones "reach for something from" Sprewer, and that Sprewer "said, No." She testified that She said that she did not see a gun in Jones's hand.
¶ 4 Jones's girlfriend in September of 2006, Kandace Perry, testified that on the evening of September 5th, Jones got a call and afterwards told her "[t]hat he was going to go make a move," which she translated as "[i]t's like a robbery." He wanted her to take him to 91st and Silver Spring Drive. Although she initially protested, she told the jury that she dropped him off in thatarea nevertheless. She said that he had a "small and silver" gun with him. At around 10:50 p.m., Jones called her and sounded "frantic." He asked her to "come get him," telling her that "[s]omething had went wrong." She picked him up in the area of 91st and Silver Spring Drive. When they got back to her house, he told her "that the move went bad."
The next day, Jones told her that "the person he shot had died." Perry testified that "possibly a few days after" the shooting, Jones told her that he had shown the gun to his brother, telling him "that this was the gun with the body on it." Perry testified that on September 12, Jones gave "[t]he gun" to his brother. She also testified that when the police came to her house looking for the gun, they found Ecstasy pills, which, she said, belonged to Jones.
¶ 5 Jones's brother's girlfriend, Holly Noggle, confirmed for the jury that Jones gave a gun to his brother. After initial attempts to hide the gun, Noggle ultimately gave it to the police. The gun the police got from Noggle was received into evidence as Exhibit 16.
¶ 6 Demonta Gray confirmed the testimony of the others that Jones shot Sprewer. He told the jury that as he and Jones were walking in the area, which Jones said were "ecstasy pills." 1 After they "stated that they don't do drugs," and Jones said "okay," Sprewer and Hervey "sped up" and split up—"One walked towards 90th, and the other one walked towards 91st." Jones and Grayfollowed the fellow walking towards 91st, Sprewer. Gray told the jury that he also saw "[a] black female" in the area.
¶ 7 When they caught up to Sprewer, Gray heard Jones say "[s]ome words like give me what you got." We pick up Gray's testimony at around this point:
¶ 8 Gray told the jury that in return for his testimony, his case was plea-bargained and that he agreed to plead guilty to felony murder, as a juvenile, testifying that he was "told the worst that could happen to me is I could be held at [the juvenile facility in] Wales until I'm 25 years old," although he admitted that he was "[e]xpecting something better."
¶ 9 One of the police officers who arrived at the scene of Sprewer's shooting when Sprewer was still alive, testified that when he asked Sprewer who had shot him, he responded that "a black male with a goatee" shot him after demanding that Sprewer give him money.
¶ 10 The State also presented the testimony of a technician with the State Crime Laboratory, who described the markings that he said were imprinted by the firing process on the bullet recovered from Sprewer's body and connected with Exhibit 16, the gun recovered from Noggins.2
¶ 11 The technician testified that this was his opinion "to a reasonable degree of professional certainty." (Answering "[y]es" to the prosecutor's phrasing.)On cross-examination, Jones's lawyer elicited from the technician that the procedures he followed had "no error rate."
¶ 12 The technician also tied a cartridge case found at the scene of the shooting to Exhibit 16, the gun, opining that "[i]t was fired in this firearm." When asked by the prosecutor whether there was "any other gun in the world that could have fired that particular cartridge case," the technician responded "no," and asserted, in response to the prosecutor's question, that his opinion in that regard was "to a reasonable degree of professional certainty."
¶ 13 The State also presented the testimony of Percy Morgan, a person who was in the jail with Jones before Jones's trial. Morgan testified that Jones told him that"he shot a guy," whom Jones indicated was "retarded." Everyone agrees that Sprewer was a young man with special needs. On cross-examination, Morgan testified that Jones "had got a tattoo while he was in jail like with Killer Chris on his arm and like after killing a person."
¶ 14 Jones claims that he is entitled to a new trial because of many errors he contends were made by both the trial court and his lawyer. Specifically, Jones argues:(1) the type of testimony offered by the technician should never be received into evidence; (2) the technician's testimony should not have been received into evidence in this case; (3) alleged "prosecutorial misconduct" deprived Jones of a fair trial; (4) Jones's trial lawyer gave him ineffective representation; (5) there is "newly discovered evidence" that requires a new trial; and (6) the trial court erred in not letting Jones hire a postconviction expert at taxpayer expense. Additionally, Jones asserts that the trial court erred in denying his motions for postconviction relief without a hearing, and that he is entitled to a new trial in "the interests of justice." The latter two contentions turn on our resolution of the other claims.
¶ 15 As will be seen, many of Jones's contentions require a determination whether Jones's trial lawyer gave him ineffective representation. Accordingly, before we analyze Jones's arguments, we restate the ineffective-assistance-of-counsel standards.
¶ 16 To establish ineffective assistance of counsel, a defendant must show: (1) deficient representation; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient representation, a defendant must point to specific acts or omissions by the lawyer that are "outside the wide range of professionally competent assistance." Id., 466 U.S. at 690, 104 S.Ct. 2052. To prove prejudice, a defendant must demonstrate that the lawyer's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. Id., 466 U.S. at 687, 104 S.Ct. 2052. Thus, in order to succeed on the prejudice aspect of the Strickland analysis, ...
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