State v. Kimble
| Decision Date | 29 November 2022 |
| Docket Number | 2021AP1227-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Cartrell Romel Kimble, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Not recommended for publication in the official reports.
APPEAL from a judgment and an order of the circuit court for Milwaukee County: Cir. Ct. No. 2017CF2050 JEFFREY A. CONEN and MICHELLE ACKERMAN HAVAS, Judges. Affirmed.
Before Brash, C.J., Donald, P.J., and White, J.
¶1 Cartrell Romel Kimble appeals his judgment of conviction entered upon a jury's verdict for first-degree recklessly endangering safety while armed, as well as the order denying his motion for postconviction relief without a hearing. Kimble argues that the State improperly vouched for two of the witnesses in its closing argument, which violated his right to due process and constituted plain error. He also argues that he was denied effective assistance of counsel because his attorney did not object to the prosecutor's improper closing argument. We conclude that the prosecutor's argument was a reasonable inference drawn from the evidence adduced at trial, that no plain error occurred, and that Kimble failed to show his attorney's performance was deficient or prejudicial in failing to object. Accordingly, we affirm.
¶2 This case arises out of a shooting related to a drug deal in August 2012 in Milwaukee, in which two men were shot-one died and the other survived. According to the criminal complaint Kimble and a co-actor, both wearing t-shirts as masks over their faces, approached a porch on North 50th Street. There were at least four people on the porch; Kimble and his co-actor allegedly shot and killed Leneir Johnson and shot a second man, D.H., whose injuries were not life threatening.[1]
¶3 In April 2017, Kimble was charged with first-degree intentional homicide as a party to a crime for the death of Leneir Johnson and first-degree recklessly endangering safety while using a dangerous weapon as a party to a crime for the shooting of D.H. The case proceeded to a jury trial in April 2018. During the trial, multiple witnesses testified about the events that transpired including providing information about the crime scene and the weapon casings recovered; however, there was no physical evidence such as DNA or fingerprints that linked Kimble to the crimes. Although numerous witnesses testified to seeing the shooting and the men running from the scene, the prosecutor offered in an opening statement that the jury would hear from two witnesses who would "identify [Kimble] after the shots." Those two witnesses were C.J., hereinafter, "Cory" and D.H., hereinafter "Derek."[2] We recite relevant details from each man's testimony.
¶4 Cory's testimony on direct examination began with "Is it safe it say you don't want to be here correct?" To which Cory replied, "Yes." The prosecutor then asked if he was required to testify because of a subpoena. Cory replied, "I guess." Cory testified that he recalled hearing gunshots near North 51st Street and West Clarke Street on August 24, 2012, although he could not recall the time. After hearing the shots, he saw two men running through a gangway between two houses. He did not recall what the men looked like.
¶5 Cory testified that he spoke with a Milwaukee Police Department detective in April 2014; however, his memory was affected by a car accident in 2016. Immediately before trial, Cory met with police to refresh his recollection of his interview from approximately four years earlier. Cory testified that he did not recall telling the detective that he saw the individuals running in the gangway and recognized one of them as a man he knew as "Trell." He acknowledged his signature on trial exhibit 52, a supplemental report on a photograph array identification form dated April 10, 2014. He did not recognize the individual photographs from the photograph array, exhibits 53 through 58; he acknowledged his initials on exhibit 55, the photograph of Kimble, but he did not recall marking the photograph.
¶6 Cory testified that he recalled the men running in the gangway between two houses, that they had their respective right hands under their shirts, consistent with concealing a gun, but that he did not see the weapons. He did not recall telling police that one of the men said, "What's up?" as he ran past, nor did he recall recognizing the voice as belonging to Kimble. He recalled that the men ran westbound through North 51st Street, through another gangway between houses on the other side of the street, and then out of his sight. He recalled hearing the sirens shortly after seeing the men running and that he heard that someone died as a result of the incident but he did not know who the victims were.
¶7 When questioned about his recall, Cory stated: Cory stated that with the questioning by the prosecutor "going on and on … it's coming to me." He realized that "somebody else told" him Kimble's name and the details of the day. The prosecutor asked him if he did not come forward with Kimble's identification in 2012 because he was scared. Cory replied, Cory stated that he did not see the face of the men running in the gangway.
¶8 The State called Detective James Hutchinson, who testified that in the course of an investigation, a person told him that Cory had information about the August 2012 homicide of Johnson. The detective testified that Cory told him about seeing two men running in the gangway between two houses after the shooting, recognizing Kimble, and that he was on his porch having a family barbecue at the time of the incident. Cory identified Kimble in a photograph array, signed the identification form, and put his initials on the back of the photograph of Kimble.
¶9 The second witness at issue is Derek. He also was asked if he wanted to be in court testifying, to which he answered, "No." He testified that on the night in question in August 2012, he was taking out his garbage from his home on North 51st Street and he heard gunshots. Derek was by his garage and he saw two men running in the gangway between his house and the next. He saw that both of the men were wearing dark clothing, but he did not see their faces. Derek testified that he saw a gun and that one person said his nickname, "and by them saying my name, it made me kind of, like, cautious a little bit as to who could have said that." He recalled the phrasing as "[Coach], don't say nothing."[3] He recalled it was a hot day, his three kids and his mother were outside, and he was concerned for them. Because the men were running toward the front of his house, and he was still in the back by the garage, he thought he yelled something like "Oh, okay, put them guns up because my kids are in the front." Derek did not see the men's faces and he did not recall telling a police detective that the men's t-shirt face masks were pulled down when he first saw them.
¶10 The prosecutor asked, "do you worry for your safety because you're testifying in this case?" He responded:
I'm kind of nervous because at the same time it's my life. My life is important before anybody in this court so that's why I'm in court today. My life is important. Everybody else, you all just looking and I have to live this. I gotta still take care of my kids. I still gotta go out there and feed them and make sure they're straight and watch over my back. If anything ever was to happen, you all go home, I will be in fear.
¶11 Derek testified that he did not recall telling the detective that he recognized the running men, nor did he recall telling the detective that he could see both men were carrying guns. He did not recall the caliber of their weapons, although he did remember seeing one of the guns was black. Derek recalled that it was surprising that one of the men saw his face, recognized him, and called out to him using his nickname. Derek did not remember telling the police that he saw the men's faces, and stated he did not tell the detective he saw their faces
¶12 Derek testified that he "was being honest" when he met with police in April 2014 and he was "being honest today" in court. The prosecutor stated, "I understand that you absolutely don't want to be here today and that you're hesitant to talk about this." Derek replied, He stated he did not come forward in 2012 because he did not know who the men were that he saw running. Derek stated he was drawn into the case because his neighbor, Cory, talked to the police. He did not recall ever speaking about the incident with Cory, whom he identified in a photograph.
¶13 Derek testified that he participated in a photograph array identification with the police and recognized Kimble. He denied that he recognized Kimble as the man running in the gangway that day, but instead he "knew him from the neighborhood." Derek could not say that it was Kimble whom he saw in the gangway pulling his t-shirt off his face and saying, "Don't say anything, [Coach]." He acknowledged that on the photograph array identification form, it showed that he signed indicating that he identified a photograph of Kimble as the person running from the scene with a handgun. Derek...
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