State v. McCorkle
| Decision Date | 22 March 2022 |
| Docket Number | 2019AP1836-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Robert R. McCorkle, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from a judgment of the circuit court for Milwaukee County No. 2014CF4982 DANIEL L. KONKOL, Judge. Affirmed.
Before Brash, C.J., Donald, P.J., and White, J.
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).
¶1 Robert R. McCorkle appeals the judgment of conviction entered following his jury trial. McCorkle contends that the trial court erred when it admitted: (1) a detective's testimony regarding a witness's identification of McCorkle; (2) recorded jail phone calls; and (3) the victim's prior statements. In addition, McCorkle argues that these errors cumulatively deprived him of a fair trial. We disagree and affirm.
¶2 On July 5, 2014, Richard Conn was shot in the head. Conn later died as a result of the gunshot wound. Conn was to be a State's witness in State v. Hakeem Harris Milwaukee County case No. 2014CF2476. The State's theory was that Conn was shot to prevent him from testifying against Harris.
¶3 McCorkle, who was alleged to be an associate of Harris, was charged with three counts relating to Conn's death: (1) first-degree intentional homicide using a dangerous weapon as a party to a crime, and as a repeater; (2) possession of a firearm by a felon, as a repeater; and (3) battery to a witness using a dangerous weapon, as a party to a crime, and as a repeater.
¶4 Prior to McCorkle's trial, the State moved to admit a recorded police interview in which Conn had identified Harris. The trial court denied the State's request to play the video of the interview, but ruled that the State could use Conn's statements in the criminal complaint against Harris and testimony from Harris's preliminary hearing.
¶5 McCorkle's jury trial began on June 1, 2015, and spanned a period of four days. Jimmie Wade III testified that he was across the street when Conn was shot. According to Wade, two men approached Conn, and the man who shot Conn wore a "fishing hat" with a drawstring and a white t-shirt. Another witness, Curtis Buck, told police that the shooter wore "a sunhat maybe with strings down the side," a blue and white striped t-shirt, and cargo shorts.[1]
¶6 The State also played a police interview of six-year-old J.J.[2] J.J. told police that she was playing outside of her house when she heard a gunshot. She saw two men: one in a blue shirt and one in a red shirt. The man with the blue shirt had a gun[3] and wore a hat "with sticks" that looked like "wood." J.J. said that after the shooting, both men ran through "the cuts" between the houses.
¶7 Sandra Wren, who was in her backyard, testified that she heard a gunshot and then saw two men run through a gangway two houses down. On the gangway, police found a plastic sandwich bag with nine individual corner cuts of suspected marijuana. Nicholas Kleine, a forensic scientist, testified that McCorkle was determined to be the source of DNA on three of the corner cuts.
¶8 Although the shooting itself was not captured on video surveillance footage from the area showed three men exit a silver Chevy Impala. Detective Keith Kopcha testified that the person exiting from the driver's side door was a male wearing a "bucket hat with a brim around it," which some people refer to as a fishing hat or army hat, a light blue shirt, light colored shorts, and darker shoes with a white sole. According to Kopcha, the surveillance footage also showed the person with the bucket hat and a person wearing a white t-shirt walk towards the scene of the shooting, disappear from camera view, and then reappear running away from the scene and cutting through yards.
¶9 Six days after the shooting, police located the Impala that was believed to be the car in the surveillance footage. The Impala was abandoned in the middle of the street. Inside the Impala, police found a notice from the Department of Motor Vehicles for failure to report an accident with the name of Robert McCorkle on it and a pair of black latex gloves. Marlisa Harris was the registered owner of the car.
¶10 Latent Print Examiner Matthew Maudlin testified that he examined two print cards from the Impala. Maudlin testified that one of the prints matched McCorkle's left palm print. The other print was identified as Marlisa's right palm print.
¶11 Marlisa, who had dated McCorkle for two months, testified that McCorkle had used her Impala on the day of the shooting.[4] Marlisa testified that her Impala was currently in the possession of the police. When asked if McCorkle told her what happened to her car, Marlisa replied that "He told me that he loved me and he did not want to go back to jail, and that there was a man in a suit following him." Marlisa said that McCorkle thought the man in the suit was a detective. The State showed Marlisa a still photo taken from the surveillance footage. Marlisa stated that the photo showed her vehicle and McCorkle. Marlisa stated she believed it was McCorkle because of his "posture." Marlisa also wrote on another surveillance photo that McCorkle "has a shirt … [s]imilar to this[.]" In addition, Marlisa testified that McCorkle owned a tan "fisher hat" with a "black string."
¶12 Conn's brother, Levandior Conn, also identified McCorkle as one of the suspects in the surveillance video. Levandior testified that McCorkle was an "associate" of Harris. In addition, Levandior testified that he had conversations with Conn about being a witness against Harris.
¶13 Nine days after the shooting, McCorkle was arrested in New London, Wisconsin. Tracy Delrow, who gave McCorkle a ride to New London, testified that McCorkle said "he would like to get away for a while[.]" Delrow also testified that he had seen McCorkle wearing a khaki or green "fishing hat" a couple of times and driving an Impala.
¶14 Detective Kopcha interviewed McCorkle after his arrest. Kopcha noted that McCorkle's shoes were "consistent" with the shoes captured on video of the suspects. McCorkle said he knew Harris and admitted that he had calls with Harris while Harris was in custody. Kopcha showed McCorkle a photo of Conn and McCorkle denied knowing Conn or knowing Conn's name or his nicknames, which included the nickname "Gutta." McCorkle did not recall his specific whereabouts on July 5, 2014, but thought he was driving around picking up plates of food other people had prepared for him for the Fourth of July. McCorkle also denied knowing about or driving the silver Chevy Impala.
¶15 Consistent with the trial court's pre-trial ruling, Detective Kopcha testified that he had interviewed Conn about a shooting that occurred on May 17, 2014, in which Conn was a victim and a witness. According to Kopcha, Conn identified Harris as the shooter. Conn was named in the criminal complaint against Harris.[5] In addition, Detective Luke O'Day told the jury that he had testified against Harris at a preliminary hearing. At that hearing, O'Day testified in open court that Conn had identified Harris as shooting at Conn.
¶16 At the conclusion of the trial, portions of recorded jail calls between Harris and McCorkle were played for the jury. In a call made one day after Harris's preliminary hearing, Harris asked McCorkle "what are you exactly down for?" Later, McCorkle told Harris that he has an "avenue" and a "little bitch with a car," which he gets when she goes to work. In addition, in a call two days after Conn was killed, McCorkle found it amusing that people were saying that "Gutta" was dead and going to McCorkle's family house thinking it was McCorkle that was killed.[6] McCorkle also referred to Conn's death as a "motion to suppress witness."
¶17 The jury found McCorkle guilty as charged. The court sentenced McCorkle to life in prison with eligibility for extended supervision in 2060. This appeal follows. Additional relevant facts are discussed below.
¶18 On appeal, McCorkle argues that the trial court erred when it admitted: (1) testimony from a detective regarding Levandior's identification of McCorkle; (2) the recorded jail phone calls; and (3) Conn's statements in the criminal complaint against Harris. In addition, McCorkle argues that these errors cumulatively deprived him of a fair trial. We address each issue in turn.
¶19 At trial, Levandior identified McCorkle as one of the suspects in the surveillance video. Levandior testified that while he "didn't put a face on it," he could tell that the person wearing the blue shirt was McCorkle based on "the body frame" and the person's manner of walking. Levandior further testified that he had seen Harris and McCorkle interact on a couple of occasions.
¶20 On cross-examination, the defense elicited testimony that Levandior had known McCorkle for sixty days and had only seen him three times when Levandior was in the hospital under sedation. According to Levandior, he saw McCorkle walking to and from his hospital room.
¶21 Subsequently, the State presented testimony from Detective Brett Huston. Huston testified that he showed the surveillance video to Levandior. The defense objected to any testimony other than an affirmation that Levandior had identified someone in the video. The court overruled the objection and Huston testified that Levandior:
identified the individual in the blue shirt and white shorts as … Robert McCorkle, the defendant. In fact, when I showed him this video, I didn't ask him any particular person that I was...
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