State v. Mayo

• Decision Date: 26 June 2007
• Docket Number: No. 2004AP1592-CR.,2004AP1592-CR.
• Citation: 734 N.W.2d 115,2007 WI 78
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas S. MAYO, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

734 N.W.2d 115

2007 WI 78

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas S. MAYO, Defendant-Appellant-Petitioner.

No. 2004AP1592-CR.

Supreme Court of Wisconsin.

Argued February 13, 2007.

Decided June 26, 2007.

For the defendant-appellant-petitioner there were briefs by Keith A. Findley and University of Wisconsin Law School, Madison, and oral argument by Keith A. Findley.

For the plaintiff-respondent the cause was argued by James M. Freimuth, Assistant Attorney General, with whom on the brief was Peggy A. Lautenschlager, Attorney General.

¶ 1 N. PATRICK CROOKS, J

This is a review of an unpublished, per curiam decision of the court of appeals¹, affirming the decision of the Circuit Court for Racine County, Judge Richard J. Kreul presiding, which entered a judgment of conviction against Thomas S. Mayo (Mayo) and denied Mayo's postconviction motion for a new trial.

¶ 2 In his petition for review, Mayo asks this court to determine whether the prosecutor's alleged improper comments during Mayo's trial warrant a new trial, either as plain error or in the interest of justice, despite the fact that defense counsel failed to object to such comments. Mayo further asks this court to determine whether a new trial is warranted, because of hearsay testimony given by the State of Wisconsin's (State's) witnesses concerning out-of-court statements of the complaining witness, Clarence Price (Price). Additionally, Mayo asks this court to determine whether his trial counsel rendered ineffective assistance by, among other things, failing to conduct an independent investigation, and by failing to obtain and use the transcript of Price's sworn testimony at the preliminary hearing. Mayo's claim of ineffective assistance of counsel overlaps with his other claims before this court.

¶ 3 We hold that, although there was improper prosecutorial argument in the case, such misconduct did not so infect the trial with unfairness as to constitute a denial of Mayo's due process rights, thus warranting a new trial, either as plain error or in the interest of justice. He has not shown that the real controversy was not fully tried, nor has he established that there was a miscarriage of justice. There is not a substantial probability of a different result, even if a new trial were held. We further hold that the circuit court properly admitted testimony concerning Price's out-of-court statements to the police, under the excited utterance exception to the hearsay rule. See Wis. Stat. § 908.03(2)(2003-04)². Finally, we hold that, although defense counsel rendered deficient performance by failing to conduct an independent investigation, Mayo has not established that there was a reasonable probability that the result would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mayo was not prejudiced by such deficient performance. On balance, we are satisfied, viewing the deficiencies of defense counsel and the incidents of prosecutorial misconduct for their cumulative effect, that Mayo is not entitled to a new trial and, therefore, the decision of the court of appeals is affirmed.

I

¶ 4 This case involves events that occurred between Mayo and Price on November 15, 16, and 17, 2002. Mayo and Price both have criminal records, and both testified about the incidents that occurred on the dates at issue, but their accounts are substantially different.

¶ 5 According to Price, Mayo robbed him of 35 dollars at gunpoint in Racine, Wisconsin on November 16, 2002. Price testified that he was walking to the home of a friend when a man approached him, and asked him for a dollar. Price stated that he had seen the man before, and that the man had been introduced to him on the prior evening, November 15, as a friend of Price's uncle. Price said that the man's name was Thomas and identified him at trial as Thomas Mayo.

¶ 6 Price testified that, when Mayo asked him for a dollar on the evening of November 16, Price reached into his pocket to get a dollar. Price testified that Mayo pointed a gun at him, robbed him of the 35 dollars he was carrying, and struck him on the back of the head. Price said that Mayo then ran behind some bushes and told Price to walk in the opposite direction. Price testified that the robbery occurred in the driveway of his friend Jarrell, and that Price went into Jarrell's house and called his mother to inform her of the incident. Price testified that he then walked two blocks to another friend's house and called 911. Officer Dan Langendorf (Officer Langendorf) promptly responded to the call, at which time Price informed him of the encounter with Mayo.

¶ 7 Mayo testified that he was introduced to Price on the evening of November 15, 2002, by Price's uncle. Mayo stated that he encountered Price on the street the next evening, November 16, and purchased cocaine from Price. Mayo said that he was shorted on the amount of cocaine by Price, and he wanted to reclaim the 35 dollars he paid for the cocaine. Mayo testified that he struck Price in the jaw, then kicked and stomped Price's stomach and head while getting his 35 dollars back. Mayo stated that Price sought revenge by concocting a robbery story and reporting it to the police.

¶ 8 Price testified that on November 17, 2002, Mayo confronted him outside a Racine taco restaurant. Price said that Mayo told him that the robbery was an accident, and that he intended to repay Price. Conversely, according to Mayo's testimony, Price and a companion confronted him outside of the restaurant, and attacked him with a tire iron, cutting his wrist. At trial, Mayo pointed out stains on the neck of the shirt he had been wearing on November 17, 2002, and claimed that they were blood stains from the cut on his wrist.

¶ 9 On November 17, 2002, Price called 911 to report that he was in the presence of the man who had robbed him the previous night. Sergeant Michael Ackley (Sergeant Ackley) and Officer Daniel Small (Officer Small) arrived at the restaurant soon after the call. Officer Small testified that Mayo was already running before the police arrived, and that he was unsure if Mayo was running because he saw the squad car or for another reason. Sergeant Ackley testified that Mayo began running when they stopped their squad car at the scene.

¶ 10 Officer Small and Sergeant Ackley gave chase. Mayo ran and entered a nearby brick house that was not Mayo's residence. Sergeant Ackley testified that he rapped on the door three different times over the course of twenty to forty seconds, announcing that he was a police officer. Mayo finally opened the door.

¶ 11 Sergeant Ackley testified that he was halfway finished with patting down Mayo when Price arrived and, without questioning, pointed at Mayo and explained that he was the man who robbed him. Mayo testified that the police took him back to the restaurant, where Price identified him. According to both Sergeant Ackley and Officer Small, Mayo did not respond to Price's accusation. Both officers said that Mayo did not exhibit any apparent injuries. Mayo was arrested for obstructing an officer and was informed that he had been identified as having been involved in an armed robbery.

¶ 12 According to Sergeant Ackley's testimony, Mayo told him that he ran from the officers because he had a crack pipe on his person and did not want to get arrested for possession of drug paraphernalia. Mayo testified that, before opening the door for the police, he hid the crack pipe under the linoleum in the front hallway of the house to which he had fled.

¶ 13 At Mayo's trial in Racine County Circuit Court, Judge Richard J. Kreul presiding, Mayo and Price were the only two witnesses to testify, specifically, about the confrontation between them. Officer Langendorf testified about responding to the robbery call on November 16, 2002, and about his interview with Price. Sergeant Ackley and Officer Small testified about the arrest of Mayo on November 17, 2002.

¶ 14 During her opening statement and also during the presentation of trial testimony, the prosecutor remarked, and elicited testimony, regarding Mayo's silence concerning Price's accusation that he was the man who robbed him on November 16, 2002. During her closing arguments, the prosecutor made the following comments about her role as a prosecutor:

The way a criminal case works is police reports are forwarded into the District Attorney's Office, we review them, we determine whether there should be a charge or there shouldn't be a charge. We have the discretion to do that. The case then is charged, and we have an open file policy, meaning that the defendant and defense attorney can have access to all of the police reports, so the defendant has had access and seen what all the evidence is against him and what the victim has said and what the police have said. He's had almost five months to come up with something to attempt to explain his actions away, and you have now heard what he has come up with, which is something new.

¶ 15 The prosecutor also made the following statement in her closing arguments:

Let's look at some of the statements the defendant made while on the stand as opposed to the facts as we know them or things he previously stated . . . .

Well, he [Price] identified him [Mayo] and said that's the guy that robbed me. This was within the earshot of the defendant. . . . when Clarence Price said that's the guy that robbed me, that Thomas Mayo said nothing . . . .

Prior to him being arrested, if he was an innocent man, why would he say nothing at that point when he has been accused? . . .

My opinion would be that this was a crime of opportunity. The opportunity presented itself to the defendant and he took it.

¶ 16 Then, during her rebuttal argument, the prosecutor further stated:

Defense counsel has indicated that it's my job to put a spin on the evidence to convict the defendant. I described briefly what my job is in the first part of my...