State v. Love
| Citation | 284 Wis.2d 111,700 N.W.2d 62,2005 WI 116 |
| Decision Date | 12 July 2005 |
| Docket Number | No. 2003AP2255.,2003AP2255. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Lisimba L. LOVE, Defendant-Appellant-Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
For the defendant-appellant-petitioner there were briefs by Kathleen S. Donius and Reinhart Boerner Van Deuren S.C., Milwaukee, and oral argument by Kathleen S. Donius. For the plaintiff-respondent the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
¶ 1.
Lisimba Love seeks review of a court of appeals summary disposition1 that affirmed the circuit court's order denying Love's postconviction motion requesting a new trial on ineffective assistance of postconviction counsel and newly discovered evidence grounds.
¶ 2. Love argues that he presented sufficient material facts for a reviewing court to meaningfully assess his claims. Further, he contends that he is entitled to an evidentiary hearing on both claims. We agree. Although Love's motion does not allege sufficient facts that, on their face, would be admissible at the hearing, the motion papers allege sufficient material objective factual assertions that, if true, entitle him to relief. Therefore, we reverse the court of appeals' decision and remand this case to the circuit court for an evidentiary hearing on both of his claims to determine whether Love is entitled to a new trial.2
¶ 3. On September 28, 1999, shortly after midnight, Glenn Robinson, a Milwaukee Bucks professional basketball player, left Junior's Sports Bar in Milwaukee, Wisconsin. Fifteen or twenty feet away from the exit, he was accosted by two men and robbed. The following evidence was presented at Love's trial.
¶ 4. Robinson arrived alone at Junior's Sports Bar between 10:00 p.m. and 10:30 p.m. and stayed there for an hour and a half. While there, he conversed with three women: Tawanda Knox, Yolanda Corley, and Latasha Robinson.3 Corley called a friend of hers, Calvin Wilson,4 who stated he knew Robinson. Corley handed the telephone to Robinson, who briefly spoke with Wilson.
¶ 5. Knox left the bar shortly before Corley and Latasha. As Knox left she saw a man in the doorway of the bar she believed to be "Poppa," a nickname by which she knew Love. Knox lived across the street from Love and worked in a hair salon owned by Love's sister-in-law. Knox testified that she said, "What's up, Poppa?" as she exited the bar. Knox could not remember if the person said anything back to her. Upon cross-examination, Knox testified that she was not 100 percent certain that it was Love she saw.
¶ 6. After leaving the bar, Knox went to the vehicle she and her friends had arrived in and sat inside for approximately two minutes. She saw Robinson standing near his car, which was roughly three parking spaces away. Corley and Latasha then entered the car in which Knox was sitting.
¶ 7. Knox saw Robinson put his hands in the air like he was removing something from around his neck. As Latasha began to drive the vehicle away, Knox noticed Robinson backing up with his hands facing out and she said, "Oh my god, he's getting robbed." Knox could not, however, see the face of the assailant in front of Robinson. The car then drove off without Knox observing the rest of the robbery. Knox immediately called Junior's Sports Bar from Latasha's cell phone to report the robbery. Knox agreed that at that time she thought Love was involved in the robbery.
¶ 8. While Robinson was being robbed, the send button on Latasha's cell phone was inadvertently pressed, and the telephone dialed the telephone number of Wilson. Knox, Corley, and Latasha's conversation in the car during and immediately after the robbery was recorded on Wilson's voicemail. The tape contained conflicting statements from the women regarding whether anyone saw "Poppa" and if so where. The State played this tape at trial.
¶ 9. Robinson left the bar with Mike Williams, a friend of Corley's, shortly after Knox. Williams gave Robinson Corley's number, after which Robinson approached his vehicle that was parked approximately 15 to 20 feet from the exit of the bar. Robinson noticed another vehicle parked directly in front of his car. Robinson was about to disarm the alarm on his vehicle when a man approached him from what Robinson assumed was the vehicle in front of his. The man approached with a silver handgun and told Robinson to, "Break yourself." Robinson understood this to mean that he was being robbed. Robinson handed over his keys, telephone, and wallet and tried to hand over his necklace but his assailant snatched it from his neck. Robinson backed away from the man with the gun and approached the rear of his vehicle. Another man stepped around the back of the vehicle and told Robinson not to run. After Robinson gave the men his earring, the two men ran to the car parked in front of Robinson's vehicle and left.
¶ 10. Robinson then went into Junior's Sports Bar where he called the police to report the robbery. When the police arrived, Robinson told them that the gunman was "around six two, 170 pounds and with a mini-afro, dark complected." Robinson described the other assailant as "around six one around the same weight 170, 180, and dark complexion." Robinson also estimated both assailants were no more than 29 or 30 years old.5 Robinson did not identify any scars or facial hair as being present on either attacker. Robinson later testified that each man had been about an arm's length away from him and that he focused on the robbers' faces and staring at the gun. The whole incident took about two minutes.
¶ 11. Two days after the robbery, Robinson was given several photo arrays. Robinson did not identify anyone as the assailants. These arrays did not include a picture of Love or Effrim Moss, the person later charged as a co-conspirator to the robbery.
¶ 12. A few days after the robbery, Robinson was contacted by Wilson, who told Robinson that he had the recorded conversation between Knox, Latasha, and Corley on his cell phone voicemail regarding the robbery. Robinson recorded the conversation on audiotape and gave it to the police.
¶ 13. One week after the robbery, Robinson was shown four photo arrays. In the third set, Robinson indicated that he was 80-85 percent sure that Love's picture was that of the gunman. Robinson agreed that the picture featured a man with lighter complexion than he remembered. Robinson later identified Love at a line-up, and, at trial, Robinson said he was 100 percent sure that his identification of Love as the gunman was correct. Robinson also identified Love at the preliminary hearing and trial.
¶ 14. At the time of the incident, Love had a long wide scar on his right cheek, short hair, and had a beard and mustache. Love's arrest detention report, which was filled out by the arresting officer, indicated that Love has medium complexion, weighed 245 pounds, and had a heavy build.6 Love also testified he was 26 years old.
¶ 15. Love presented an alibi defense. Love testified that he was not at the bar that night and had never gone to Junior's Sports Bar. Love stated that he had been picking up his friend Rochelle Adams' mother the night of the robbery.
¶ 16. Rochelle testified that Love often accompanied her when she picked up her mother and remembered Love being with her on September 27, 1999, in particular because she had spent the whole day with him. Marilyn Adams, Rochelle's mother, testified that Love occasionally accompanied her daughter while picking her up from work, but did not remember the night of September 27, 1999, in particular.
¶ 17. Mary Jones also testified on behalf of Love. Jones testified that on the night of the robbery she spoke with a man named "Dee" at Junior's Sports Bar, who, after seeing Robinson at a table behind them, stated that, he was going to rob Robinson. Jones testified that she left the bar shortly after Robinson and saw Robinson being robbed. Jones testified she observed Dee with what appeared to be a gun and saw Dee and another man approach Robinson from behind. At seeing this, Jones testified she ran, but saw Robinson take off a necklace. Jones said that "Dee" was a black male with dark complexion, approximately 26 to 27 years of age, five foot seven inches, 180 pounds with a medium build, and was clean-shaven.
¶ 18. Detective Scott LaFleur of the Milwaukee Police Department testified in rebuttal. He stated that Jones had many contradictions between her testimony and her statement to police. LaFleur stated that Jones told police the robbery was on a Saturday night, not the Monday night it occurred. LaFleur also noted that she told police she was so close behind Robinson upon leaving she caught the door before it shut after he passed through. The videotape surveillance of the doorway does not show anyone leaving directly behind Robinson. Jones also stated that the attackers came from behind and had a black gun while Robinson testified that they came from the front and behind and had a silver gun.
¶ 19. Love was found guilty of armed robbery as party to a crime. The jury was unable to reach a verdict on Moss, and he was later acquitted. The circuit court for Milwaukee County, Honorable Bonnie L. Gordon, sentenced Love to 44 years in prison. ¶ 20. Love's postconviction counsel filed two motions, one requesting sentencing modification, the other alleging ineffective assistance of counsel. The ineffective assistance of counsel claims stemmed from Love's trial counsel's failure to object to the prosecutor's (1) reference to the preliminary examination during the trial and closing arguments; and (2) invitation to the jurors to turn down the lights and time themselves for two minutes during their deliberations. See State v. Love, No. 2001AP817, unpublished slip. op., ¶ 6 (Wis. Ct. App. Dec. 11, 2001). The Milwaukee County Circuit Court,...
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