State v. Mull

Docket Number2020AP1362-CR
Decision Date04 April 2023
Citation406 Wis.2d 491,2023 WI 26,987 N.W.2d 707
Parties STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jovan T. MULL, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner, there were briefs filed by Christine A. Remington, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Christine A. Remington, assistant attorney general.

For the defendant-appellant, there was a brief filed by Christopher P. August, assistant state public defender. There was an oral argument by Christopher P. August, assistant state public defender.

ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. DALLET, J., filed a dissenting opinion.

PATIENCE DRAKE ROGGENSACK, J.

¶1 We review an unpublished, per curiam decision from the court of appeals.1 The court of appeals granted defendant Jovan T. Mull a new trial because it concluded Mull received ineffective assistance of counsel at his trial, which resulted in his conviction for first-degree reckless homicide.2

¶2 We conclude that Mull's trial counsel did not perform deficiently. Because we make this determination, we need not assess whether counsel's performance prejudiced the defense. Lastly, we decline Mull's request to grant him a new trial in the interest of justice because the controversy was fully tried, and it is not probable that justice has miscarried. Accordingly, we reverse the court of appeals.

I. BACKGROUND
A. The Incident

¶3 Ms. Ericka Walker was shot and killed in her bedroom during a crowded house party in the early morning hours of March 7, 2015, when a fight bordering on a brawl erupted. Eyewitness accounts are consistent so far as the general details of the evening, but differ significantly regarding the specifics.

¶4 Most accounts describe the initial outbreak of a small, personal fight, which subsided only to swell into a larger clash almost immediately. The fight escalated quickly from grabbing, to pushing, to throwing dishes, to the use of one or multiple tasers. A few people and Ms. Walker, who by most accounts was not involved in the fight, sheltered in a bedroom off of the main living area where the fight was taking place. Seeing a roommate engaged in the fight, Ms. Walker pulled him and his friend into the bedroom with her. However, the pair continued to fight, throwing objects at people standing outside the bedroom's main door from a second door to the bedroom. The fight culminated when someone fired multiple shots into the bedroom through the closed door, striking and killing Ms. Walker. Ms. Walker's autopsy confirmed she was struck by six bullets.

B. The Investigation

¶5 Police arrived on scene and began investigating the shooting immediately. Witness accounts suggest that 40 to 100 people attended the party, and police obtained statements from more than 25 individuals. Eyewitness descriptions identified the person who shot through the door as a black male who fired the gun with his right hand, but descriptions were otherwise very inconsistent.

¶6 The array of witness statements described the shooter as 16-24 years old, 5’2"-5’11" tall, slim, medium or stocky build, with a medium or dark complexion. Investigators were told the shooter had short dreads, a short "afro," a four-inch "afro," and "short, curly hair." Numerous people described the shooter as wearing a red sweatshirt, although some reported the sweatshirt was "Adidas" brand, while others told investigators it was a Wisconsin Badgers sweatshirt. Two people told police the shooter wore a blue sweatshirt. Three individuals reported seeing the shooter in a black or dark sweatshirt, while another person reported the shooter was in a white t-shirt. The shooter was described as wearing red Rock Revival pants while others reported the shooter wore black pants or blue jeans.

¶7 Accounts varied as to how many people were outside the bedroom. One witness placed two individuals outside the bedroom, both with guns and one in an orange shirt. Others told police three to eight men were looking for the two individuals Ms. Walker pulled into the bedroom. Reports also varied as to whether the lights were on or off in the living room during the fight. Nearly all accounts, however, suggested Vashawn Smyth3 and his friend Menjuan Bankhead were involved in the initial stages of the fight.

¶8 Shortly after the party, rumors began circulating on Facebook accusing Smyth of firing his gun into the door. A mysterious Facebook user contacted Ms. Walker's former girlfriend Cheyenne Pugh to convey that Smyth was the person who shot through the door. Pugh reported this information to police. Witness Keshawna Wright told officers she had seen Smyth shoot into the door at the party. Police initially investigated and arrested Smyth for Ms. Walker's death. Smyth remained adamant that he did not have a gun while at the party. Smyth first told officers he was already leaving the house when the shooting began, but in later interviews he told investigators he was in the house when someone shot through the door. One individual involved in the fight did not identify Smyth in a lineup in which he was the target. Smyth is right-handed.

¶9 Witness Jalyn Lynch reported that he saw two people holding guns at the party and identified one of them as Bankhead. Lynch told officers that Bankhead did not shoot into the door, but rather he shouted to the other person with a gun to shoot through the door. Witness Wright did not identify Bankhead in a lineup for which he was the target. Officers arrested Bankhead as a felon in possession of a firearm. Bankhead told officers he wore a red Wisconsin Badgers sweatshirt on the night of the party. The record does not reflect why investigators turned their attention from Bankhead.

¶10 During one interview, Smyth told officers Tyler Harris4 displayed a handgun to Smyth from across the room at the party minutes before someone shot through the door. Smyth reported to investigators that Tyler Harris later told him he "emptied [his] clip" at the party. Shortly after, Tyler Harris changed his Facebook status to indicate he needed to "stay low." Witness Channel Howard identified Tyler Harris in a photo array as the "person [she] saw in possession of a gun at [the] party." Officers arrested Tyler Harris as a felon in possession of a firearm. The record does not reflect why investigators turned their attention from Tyler Harris.

¶11 A few days after the incident, Pugh began hearing new rumors that Jovan Mull was the person who shot Ms. Walker through the door. Pugh received photos of Mull from unknown senders who said the person in the photo was the shooter. Pugh brought that information to investigators’ attention, too.

¶12 The investigation then focused on Mull. Witness Lynch stated he did not remember seeing Mull at the party, although others recalled seeing him there. Three individuals—Sanchez Harris, Alphonso Carter, and Desmond Butler—separately identified Mull in a photo array as the person who shot through the door. Four people—Demon Harris, Tyler Harris, Charles Cantrell, and Elicia Burrows—did not recognize or identify Mull as the shooter in separate photo arrays. Smyth told investigators Mull was "the person that had the gun in the kitchen," although he did not identify Mull as the shooter. Smyth also told investigators that he and Mull did not have an amicable history.

¶13 Additional accounts implicated Mull. Sanchez Harris told investigators that Mull said he had a gun on him while they rode to the party together. Sanchez Harris further told officers Mull "did the shooting," but also that, Mull "had to be" the shooter.

Vachune Hubbard told investigators that he had spoken with Mull shortly after the party and Mull said that at the party, "[T]hey got to fighting, so I got to shooting," and "I shot through the door." Mull is right-handed.

¶14 The State ultimately charged Mull with first-degree reckless homicide for Ms. Walker's death.

C. Mull's Trial

¶15 A four-day jury trial took place in April 2016. The State presented multiple witnesses, including witnesses who attended the party, witnesses who did not attend the party, and investigators. The defense did not call any witnesses independently.5

¶16 The State called Ms. Walker's former girlfriend, Pugh, who did not attend the party. On direct examination, the State questioned Pugh regarding Facebook messages and a photo of Smyth that Pugh received and brought to police regarding the shooter's identity. Counsel objected on foundation and hearsay grounds multiple times during Pugh's testimony. In one instance, Pugh read a message on the stand to which defense counsel made a hearsay objection. The State explained the message was offered "to explain further [officers’] investigation." The court overruled all of the defense's objections. Pugh then testified that others told her Mull was the shooter. Pugh received a text with a photo of Smyth, and another person sent her a photo of Mull on Facebook. Pugh testified she brought this information to investigators.

¶17 On cross-examination, Pugh confirmed she did not know the person who sent her a Facebook message and photo of Smyth, nor the person who sent her a photo of Mull. Pugh's responses included references to "they" or "them," which Mull's counsel sought to clarify for the court reporter. His subsequent questions resulted in the following exchange and statement from Pugh:

[Trial counsel]: And then you talked about, "They." Is there another person the message is going to?
[Pugh]: It's not actually on my messenger. It was just other people coming up to me about the situation and sending [their] love out I guess about talking to me and say they apologize for her death and stuff like that.
And also another lady was telling me about him going --
...

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    • Wisconsin Court of Appeals
    • August 24, 2023
    ...Id. at 687. ¶14 "We are 'highly deferential' to counsel's decisions, provided they are objectively reasonable and strategic." State v. Mull, 2023 WI 26, ¶35, 406 Wis.2d 491, 987 N.W.2d. 707 Breitzman, 378 Wis.2d 431, ¶65). "This court will not second-guess a reasonable trial strategy, [unle......

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