State v. McReynolds

• Decision Date: 12 April 2022
• Docket Number: 2021AP943-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Hajji Y. McReynolds, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent, v. Hajji Y. McReynolds, Defendant-Appellant.

No. 2021AP943-CR

Court of Appeals of Wisconsin, District III

April 12, 2022

APPEAL from a judgment and an order of the circuit court for Eau Claire County, No. 2014CF872 WILLIAM M. GABLER, SR. and EMILY M. LONG, Judges. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

STARK P.J.

¶1 Hajji Y. McReynolds appeals from a judgment, entered after a jury trial, convicting him of two counts of delivery of a controlled substance and from an order denying his postconviction motion.^[1] McReynolds claims multiple errors, both at trial and at sentencing. He argues that his trial counsel provided constitutionally ineffective assistance by failing to object to both inadmissible vouching evidence provided by the investigating officer as well as the State's elicitation of improper character evidence concerning McReynolds' alleged affiliation with the Vice Lord gang. McReynolds also claims that Wis.Stat. § 973.017(10m)(b) (2019-20), ^[2] is unconstitutional as applied to him. Specifically, he argues that he was denied his constitutional rights to a public trial and to be present at sentencing when, after the sentencing court imposed his sentences, it failed to state in open court the reasons for the sentences imposed and instead filed a written statement of the reasons for its sentencing decision.

¶2 We conclude that the investigating officer's trial testimony regarding the truthfulness of information provided by the confidential informant during the investigation did not constitute impermissible vouching testimony in violation of State v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673 (Ct. App. 1984). McReynolds' trial counsel, therefore did not perform deficiently by failing to object to that testimony. We further conclude that McReynolds was not prejudiced by his counsel's failure to object to the admission of improper character evidence pertaining to his alleged gang affiliation.

¶3 As to McReynolds' as-applied constitutional claims, we first determine he forfeited his claim that his right to a public trial was violated when the sentencing court filed a written statement with the reasons for its sentencing decision after the judgment of conviction was entered. We decline to apply the forfeiture rule to McReynolds' subsequent argument that his right to be present at sentencing was violated through the court's application of Wis.Stat. § 973.017(10m)(b), but we ultimately conclude that his as-applied constitutional claim in that regard is without authority and underdeveloped. While McReynolds has a constitutional and statutory right to be present at the imposition of his sentence, he does not show beyond a reasonable doubt that the court's use of § 973.017(10m)(b) to file a written statement of its rationale for the sentences imposed violated his constitutional right to be present at sentencing. Accordingly, we affirm.

BACKGROUND

¶4 The State charged McReynolds in a four-count complaint after two informant-initiated controlled drug buys occurred.^[3] The case proceeded to trial on two delivery of cocaine charges.

¶5 Investigator Aaron Ranallo of the Eau Claire County Sheriff's Office testified that he was "contacted by a confidential informant who indicated that [he] would be able to purchase cocaine from Mr. McReynolds." Ranallo who had previously worked with the informant, coordinated with him to set up two controlled drug buys. Ranallo testified in detail about the process involved with controlled drug buys in general and for this case in particular. For each buy in this case, the informant was provided with $150 in prerecorded money to purchase the drugs, he was searched beforehand, and he wore a wire and carried a video camera. After each drug buy took place, the informant gave an oral statement to Ranallo.

¶6 When asked about his motivation for contacting the police to conduct these controlled drug buys, the informant suggested that his motives were altruistic. He testified that he was a former drug user-who acknowledged being convicted of a crime ten times-and was "sort of" friends with McReynolds, but he "felt that [McReynolds] was trying to get me to use again…. So I felt that [McReynolds] needed to be off the streets." The informant was also paid $100 for each drug buy in exchange for cooperating with law enforcement.

¶7 The informant testified that he bought drugs from McReynolds during the first controlled drug buy on August 11, 2014. After the encounter, the informant provided police with an oral statement as well as three small plastic bags, which contained a white substance later confirmed to be cocaine. The State played the video of the drug buy for the jury which was seven minutes and forty-seven seconds long, but the exchange itself was not visible, as the camera was in the palm of the informant's hand.

¶8 The jury learned that between the first and second buys, an altercation occurred between the informant and McReynolds. McReynolds had asked the informant to meet him, and when he arrived, McReynolds "hit [the informant] in the nose, broke [his] nose. Then [McReynolds] left." The informant testified that McReynolds did this because the informant "owed one of [McReynolds'] friends some money." According to the informant, the friend was an individual called "KG." The State then asked, "[W]ho is KG?" The informant responded, "One of [McReynolds'] Vice Lord friends."

¶9 Days after the altercation, McReynolds called the informant and apologized, stating, "My fault. I shouldn't have done what I did." During that same call, McReynolds also told the informant, "And I'm still all good," meaning that he had drugs available for purchase. The informant and Ranallo then set up the second drug buy. The informant admitted that his motivation for offering to conduct the second drug buy was that he was "mad" at McReynolds. However, he also testified that his anger did not motivate him to lie about what happened.

¶10 The second controlled drug buy took place on August 18, 2014. The informant testified that when McReynolds arrived at the agreed-upon location, McReynolds was with the individual previously identified as KG. The State asked again, "And who is KG?" The informant responded, "His Vice Lord brother." The informant got into the vehicle with McReynolds and KG, and they "went to a location around the corner somewhere, a couple blocks down the street." According to the informant, McReynolds got out and "went between some houses, came back, [and] handed [him] the cocaine." When Ranallo met up with the informant, the informant again "turned over two plastic bags containing a white substance," which later tested positive for cocaine. The State also played the video of the second drug buy for the jury, which lasted approximately thirty-two minutes. McReynolds was visible on the video, but the drug exchange was not visible.

¶11 The jury found McReynolds guilty of both charges. At the sentencing hearing, the court stated its sentencing decision on the record, imposing five years' initial confinement and five years' extended supervision on each count, to be served concurrently. The sentencing court then invoked Wis.Stat. § 973.017(10m)(b), explaining that the statute allowed the court to "state the reasons for its sentencing decision in writing and include the written statement in the record." According to the court,

I've never done that before, but I'm going to do it here today, and the reason for that is, Mr. McReynolds, really, as a courtesy to you, and I mean this sincerely, as a courtesy to you. I don't want to go through the long and ponderous explanation [here] that I'm going to make in-in writing because I just think that you may consider it demeaning and insulting. I don't want you to feel demeaned. I don't want you to feel insulted. I don't want you feel lectured to.

You know, and particularly in light of the fact that, you know, in this particular case there were three separate times in which you refused to come to court, one on October 3rd, 2014; another one on December 8th, 2014; and then, finally, the long experience we had on the first day of the jury trial on April 9th, 2015 when you refused to come, you were forced to show up in the wheelchair, you were disruptive in the courtroom, you had to be removed to the video room, you rolled off the wheelchair and unplugged the video connection, and you had to be restrained by jail staff. You ultimately did cooperate, but, really, I think that it is not in your interest for me to go through the long analysis [at the hearing] that I am going to do in writing.

Three days later, the court filed its "Written Reasons for Sentencing Decision."^[4]

¶12 McReynolds' first postconviction counsel filed a Wis.Stat. Rule 809.32 no-merit report. McReynolds subsequently filed a "lengthy document challenging his convictions," which we deemed his response to the no-merit report. We rejected the no-merit report, noting an issue of arguable merit regarding the jury instructions. McReynolds' first postconviction counsel then informed this court that he would file a Wis.Stat. § 974.02 postconviction motion, and we dismissed the no-merit appeal. McReynolds' subsequently filed postconviction motion addressed only the jury instruction issue that we previously identified in our no-merit review.^[5] After a Machner^[6] hearing, where McReynolds' trial counsel testified and McReynolds refused to appear, the postconviction court denied the motion.

¶13 McReynolds then filed a notice of appeal from the postconviction court's oral ruling. In response, we entered an order stating that we lacked jurisdiction to review the ruling until it was reduced to writing and extending the deadline for the court to...