State v. McCauley

• Decision Date: 06 December 2022
• Docket Number: 2021AP191-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Jesse N. McCauley, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent, v. Jesse N. McCauley, Defendant-Appellant.

No. 2021AP191-CR

Court of Appeals of Wisconsin, District I

December 6, 2022

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. (2019-20).

APPEAL from a judgment and an order of the circuit court for Milwaukee County: No. 2016CF5760 JANET C. PROTASIEWICZ Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Jesse N. McCauley appeals a judgment of conviction for felony murder and possession of a firearm by a felon. He also appeals an order of the trial court denying his postconviction motion. On appeal, he argues that he is entitled to a new trial because the judge was biased in favor of the State in violation of his right to due process, and that the State presented insufficient evidence to support his intent to rob the victim in this case. We disagree, and for the reasons set forth below, we affirm.

BACKGROUND

¶2 McCauley was charged with felony murder, with the underlying offense of attempted armed robbery, and possession of a firearm by a felon as a result of his role in the shooting of Scott Ross on the night of December 7, 2016. As described in the criminal complaint, McCauley's girlfriend, Lyneesha Battle, arranged to meet Ross for a date.^[1] When Ross arrived at Battle's house, Battle and McCauley approached Ross in his car. Battle went to the passenger side door, and McCauley approached Ross at the driver's side door. McCauley was holding a gun and told Ross to get out of the car. Ross drove away, and McCauley fired shots at Ross. Ross suffered a gunshot wound to his back and was pronounced dead at the scene.^[2] ¶3 The case proceeded to a jury trial. The State called Battle as a witness at the trial, but during questioning regarding details of that night, Battle's testimony consisted largely of responses to the effect that she did not remember. At one point, the trial court proceeded to call the attorneys to the bench and held a sidebar conference. At the conclusion of the sidebar conference, the trial court excused the jury. Once the jury was out of the room, the trial court said:

All right. So Ms. Battle, I want to give you the opportunity to talk to your attorney. And this is my concern, all brought up by me:

Your negotiation-what I heard in court today was that your negotiation for having your murder charge amended was partially due to the fact that you were going to provide truthful testimony here. I don't know if you can't remember anything, but it certainly seems a little strange to me that you could remember what you talked to Detective Jacks about a couple hours ago, and what you talked to the police about a couple years ago.

So if you don't remember, go ahead and persist in the kind of answers that you're giving. I don't know if the State is going to reevaluate your case; all I know is-what I heard is that part of your deal was premised on truthful testimony. And I am concerned for you that the testimony, as it's coming in right now, may present a situation that the State moves to withdraw your plea and resentence you, and charge you with something completely different, like that murder charge.

You know, if you don't remember, you don't remember. But I think Attorney Voss indicated to me he certainly wants the opportunity to talk to you about this.

. . . .

All right. Attorney Lonski doesn't know- indicated that at this point, he hasn't done any research on which way he's leaning; it's something he's going to think about. And of course, Attorney Flanagan doesn't think I should be interposing myself. But Ms. Battle, this is nothing other than to protect you with the kind of testimony you're giving.

¶4 The trial resumed after Battle spoke with her attorney. At that point, Battle testified that she was afraid of someone named "Charlie" and that Charlie had picked her and McCauley up after the shooting. She also identified McCauley as the person who shot Ross, and she further testified that she saw McCauley standing there holding a gun after the shots were fired and Ross's car had driven off. However, Battle also testified that "the plan" was not to shoot Ross. Instead, the plan was for McCauley to "take" Ross's money. In fact, Battle indicated "that [McCauley] was going to demand Mr. Ross's money, and Mr Ross was going to give it up[.]" On cross-examination Battle further testified that she "knew about the robbery."

¶5 Ultimately, the jury found McCauley guilty of felony murder and possession of a firearm by a felon. He was subsequently sentenced to a total of fifty years of imprisonment, composed of thirty-five years of initial confinement and fifteen years of extended supervision.^[3]

¶6 McCauley filed a motion for postconviction relief in which he argued that he was entitled to a new trial because the trial court "abandoned [its] neutrality and became an advocate for the [S]tate" when it admonished Battle. In the alternative, McCauley argued that he received ineffective assistance of counsel if his trial counsel failed to "properly object" to the trial court inserting itself into the trial.^[4] ¶7 Without requesting a response from the State or holding a hearing, the trial court denied McCauley's motion saying:

The court wholly rejects the defendant's bias claim. There is no reasonable reading of the court's comments as evincing any sort of bias toward the State. Rather, the totality of the record makes it clear that the procedure the court followed was entirely appropriate under the circumstances, particularly since it was revealed that Battle was fearful and had been threatened by "Charlie." The defendant does not have a due process right to benefit from third-party threats toward the State's witnesses. In sum, the court stands by its remarks during the trial and denies the defendant's motion for a new trial on these grounds.

In its written decision and order denying McCauley's postconviction motion, the trial court also acknowledged that McCauley's trial counsel objected to the judge's interruption of Battle's testimony when it stated that: "The court then acknowledged that counsel for the defendant was objecting to the court interjecting." The trial court thus did not address McCauley's alternative argument for ineffective assistance of counsel and addressed the merits of McCauley's postconviction motion.

¶8 McCauley now appeals.

DISCUSSION

¶9 On appeal, McCauley argues that the trial court "abandoned its neutrality" and violated his right to due process when it "admonished" Battle. He also argues that there is insufficient evidence from which the jury could find that he intended to rob Ross, which was one of the elements of his conviction for felony murder. We disagree, and we address each of McCauley's arguments in detail below.

I. Battle's Testimony

¶10 In his first argument, McCauley argues that the trial judge violated his right to due process when she interrupted Battle during her testimony. He argues that the only interpretation of the judge's interruption is that the judge was acting as an advocate for the State by raising concerns about the truthfulness of Battle's testimony that overstepped the judge's neutral role. McCauley asserts that "the judge perceived that McCauley was benefitting from Battle's uncooperative testimony" and so, "without any motion from either party, the judge took it upon herself to make sure that McCauley did not benefit." In so doing, McCauley contends that the judge "abandoned her neutrality" and "became the prosecutor," and that the judge called Battle a liar and admonished Battle in order to persuade her to give testimony beneficial to the State. McCauley further argues that the judge's own explanation in the denial of his postconviction motion makes this obvious when the judge stated, "The defendant does not have a due process right to benefit from third-party threats toward the State's witnesses." We disagree with McCauley.

¶11 "The right to an impartial judge is fundamental to our notion of due process." Miller v. Carroll, 2020 WI 56, ¶15, 392 Wis.2d 49, 944 N.W.2d 542 (citation omitted). "We presume that a judge has acted fairly, impartially, and without bias." Id., ¶16. The party asserting judicial bias bears the burden of overcoming the presumption by showing bias by a preponderance of the evidence. Id. If the presumption is rebutted, the result is a due process violation, and such an error is "structural and not subject to a harmless error analysis." Id. "Whether a circuit court's partiality can be questioned is a matter of law that we review independently." State v. Goodson, 2009 WI.App. 107, ¶7, 320 Wis.2d 166, 771 N.W.2d 385.

¶12 In this case, we are confronted with an issue of objective bias.^[5] See Miller, 392 Wis.2d 49, ¶21. "Objective bias can exist in two situations: (1) where there is an appearance of bias; and (2) where objective facts demonstrate that a judge treated a party unfairly." State v. Marcotte, 2020 WI.App. 28, ¶17, 392 Wis.2d 183, 943 N.W.2d 911. "The appearance of partiality constitutes objective bias when a reasonable person would conclude 'that the average judge could not be trusted to hold the balance nice, clear, and true under all the circumstances.'" Id. (citation omitted). Where the appearance of bias "reveals a great risk of actual bias, the presumption of impartiality is rebutted, and a due process violation occurs." Id. (citation omitted).

¶13 We conclude that McCauley has not overcome the presumption and shown that the judge's interruption of Battle's testimony rises to the level of objective bias. As previous ...