State v. McKay
| Docket Number | 2021AP2166-CR |
| Decision Date | 22 August 2023 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Edward Herman McKay, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.
APPEAL from a judgment and an order of the circuit court for Milwaukee County: No. 2018CF4936 GLENN H. YAMAHIRO, Judge.
Before White, C.J., Donald, P.J., and Dugan, 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 Edward Herman McKay appeals from the judgment, entered upon a jury's verdict, for one count of theft from a person. He argues that the circuit court erred when it denied his motion for mistrial. McKay also appeals the circuit court's decision to deny his postconviction motion without a hearing based on his allegation that his trial counsel was ineffective. Finally, he argues that he should be granted a new trial in the interest of justice. We reject his arguments and we affirm.
¶2 This case arises out of J.S.'s report to the police that while standing in his front yard, a man approached him and stole two necklaces from him on June 8, 2018. In the course of investigating a different theft, the police developed McKay as a suspect. J.S. identified McKay in a photo identification array. The police further obtained surveillance video footage of the theft from a neighbor's video camera.
¶3 Although McKay was charged with a second theft and that charge was scheduled-but not officially joined-for the same trial, on the morning of the scheduled trial on March 9 2020, the second theft was dismissed and the trial proceeded on only the theft from J.S. Before voir dire, two conversations relevant to this appeal occurred. First, McKay argued to the circuit court that the photo array was "highly suggestive." He asserted that the police had "a photo array where [he] was the only light-skinned guy on there." When the court asked why McKay was only raising this issue now, McKay stated, "I have been telling [trial counsel] this for the longest." Trial counsel stated that he planned to challenge the identification at trial and the circuit court ascertained that it was trial counsel's "professional decision" that a motion to suppress or exclude the identification lacked merit.
¶4 The second issue was the dismissed second case. Trial counsel confirmed with the court that the "officers will be instructed only to testify to the fact that Mr. McKay was developed as a suspect in this offense occurring in June of 2018 and he was developed at a later point in time." With the prosecutor's assent, the circuit court stated "We don't want any references to the other case." The prosecutor affirmed, "I will instruct my officers to not reference the case that was dismissed this morning."
¶5 The case proceeded to trial; the State called the police officer who responded to J.S.'s theft complaint on June 8, 2018. During the officer's testimony, the neighbor's surveillance video camera footage was played for the jury. The officer testified that in one segment "the suspect in this incident reached over the fence-the victim's fence, he grabbed the victim's chest, and then he ran away."
¶6 J.S. testified that on June 8, 2018, he was standing in his front yard waiting for a friend when a man passed by his yard and they engaged in a brief conversation. The man told J.S. he could not hear him, so J.S. approached, the man asked about a dog and about cigarettes. When J.S. denied having cigarettes, the man moved his own sweatshirt and "jumped to grab [J.S.'s] jewelry and he ran." J.S. testified that the man stole two pendants and two gold chains that he had for a long time.
¶7 J.S. testified that he provided a physical description of the man to the police: he was bald, he had darker skin, and he had a beard. In August 2018, two police officers came to J.S.'s house and showed him multiple photos of possible suspects-J.S. identified McKay as the man who took his property. He identified the suspect based on his eyes. He picked a photo and testified that the officer "congratulated" him because that person was the one the police had apprehended.
¶8 During cross-examination, J.S. was asked if he talked about the thief's request for a cigarette when he was doing the photo array with the police in August 2018. J.S. stated, After a sidebar with the court, the court ordered J.S.'s last answer stricken from the record.
¶9 On the second day of trial, McKay requested to represent himself for the remainder of the trial. The court allowed this but retained trial counsel on standby. McKay continued the cross-examination of J.S.
¶10 The State next called an officer who administered the photo identification array to J.S. The officer testified about the development of a photo array, explaining that the booking database provides photos of people similar to the suspect and then five photos plus the suspect's photo are placed in separate folders for the witness to review. The officer explained the steps taken to ensure that the person administering the identification array does not know which folder contains the suspect's photo. The officer testified that J.S. identified a photo of McKay as the "subject that robbed" him.
¶11 During cross-examination, McKay asked the officer about the process by which the booking database provided photos based on the demographic criteria the officer searched; the officer testified that he manually chose the photos from the photos suggested by the database. McKay then asked the officer the following:
The court held a sidebar with counsel and then sustained McKay's objection and told the jury to disregard the last answer. Finally, the officer denied that he congratulated J.S. at the end of the identification process.
¶13 After a brief recess during which the court considered the testimony in the transcript, the circuit court denied McKay's motion for mistrial. The court reviewed that the officer's "testimony was that there were three crimes matching the general description in motive that had a similar suspect in age, height, and weight" and the court had ordered that "the other case, an incident connected to that, not be referenced in any way." The court stated that while it would have "preferred that this language had not been included" in the testimony, the officer did not say that McKay was "suspect in three other cases." In fact, the "general description regarding age, height, and weight … could match hundreds, if not thousands, of individuals in this community." The court further considered that it ordered the jury to disregard the answer. The court concluded that its order had not been "violated with respect to referencing the other case that has now been dismissed."
¶14 The trial then proceeded to the defense case, with McKay testifying that he was innocent of the charges, that he had never been at that location, and that he did not match the description of the suspect.
¶15 At the jury instruction conference, the court discussed with McKay whether a curative instruction about the officer's reference to the other cases could risk drawing attention to the issue. However, during the closing jury instructions, the court did address the issue of stricken testimony as follows:
¶16 The jury returned a guilty verdict on the charge of theft from person. At the sentencing hearing, the circuit court imposed a sixty month sentence, evenly bifurcated between initial confinement and extended supervision.
¶17 McKay moved for postconviction relief, arguing that trial counsel had provided ineffective assistance for failing to move to suppress J.S.'s identification of McKay in the police photo array. The circuit court denied this motion without a hearing. This appeal follows.
¶18 McKay makes three arguments on appeal. First, he contends that the circuit court erred in denying his motion for mistrial. Second, he argues that his postconviction motion sufficiently alleged ineffective assistance of counsel and he is entitled to an evidentiary hearing. Third, he asserts that a new trial is warranted in the interest of justice because the true controversy was not tried.
¶19 McKay argues that the testimony suggesting he committed other crimes merited a mistrial and the circuit court erroneously exercised its...
To continue reading
Request your trial