State v. Nunez
| Decision Date | 09 August 2022 |
| Docket Number | 2020AP176-CR,Appeal No. 2020AP176-CR |
| Citation | 980 N.W.2d 486 (Table),2022 WI App 52 |
| Court | Wisconsin Court of Appeals |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Cristian Daniel Nunez, Defendant-Appellant. |
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.
APPEAL from a judgment and orders of the circuit court for St. Croix County: Cir. Ct. No. 2015CF417, SCOTT R. NEEDHAM, Judge.
Before Stark, P.J., Hruz and Gill, 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).
¶1 Cristian Nunez appeals a judgment convicting him of several crimes, including two counts of first-degree intentional homicide and one count of arson of a building. He also appeals orders denying him postconviction relief and awarding restitution. A jury found Nunez guilty of the charged crimes after the State established beyond a reasonable doubt that Nunez killed his ex-girlfriend, Courtney Bradford; killed Courtney's ten-year-old daughter, Jasmine; started Courtney's home on fire; and used Courtney's vehicle and debit card to flee to El Paso, Texas.
¶2 Nunez contends that his trial counsel provided ineffective assistance by not objecting to, or seeking the suppression or exclusion of, certain evidence introduced at trial. In addition, Nunez argues that the circuit court erroneously exercised its discretion by admitting into evidence his statements about "hat[ing]" Courtney and by admitting evidence of Jasmine's "sexual injuries." Finally, Nunez asserts that the court erroneously exercised its discretion by awarding restitution. We reject Nunez's arguments and affirm.
¶3 On September 2, 2015, at around 12:30 p.m., police responded to a report of smoke coming from a home. Upon arriving police spoke with Adam Norwig, Courtney's ex-fiance, who informed them that Courtney owned the home, that Courtney had not answered Norwig's phone calls, and that Jasmine had not shown up for school that day. Police conducted a brief sweep of the home, noticing the smell of smoke and gasoline in the home, and observed that "there had been a fire of some sort, mostly in the basement."
¶4 Shortly thereafter, the fire department searched the home and discovered Courtney's body, which had been buried under a pile of clothes in the master bedroom. Courtney had a "substantial wound to the back of her head" that appeared to be from "blunt force trauma." Fire personnel then found Jasmine's body in the basement underneath a pile of burnt blankets and clothing. A roll of duct tape and a five-gallon gasoline container were also found near Jasmine's body.
¶5 Upon further investigation, police learned that Nunez was possibly Courtney's then-boyfriend and had lived with her "on and off again." Police also learned that Courtney's vehicle, which had OnStar service, was missing. Police began searching for Nunez. They spoke with Nunez's employer, who eventually acknowledged that Nunez was an employee and that Nunez had asked the day before to have September 2 off from work so that Courtney could take him to get a passport. Nunez's employer also informed police that Nunez had been staying at a nearby hotel. Police went to that hotel and spoke to hotel staff, but they were unable to locate Nunez.
¶6 Police also contacted OnStar to locate Courtney's vehicle via GPS. After police obtained a court order permitting use of the vehicle's GPS, OnStar tracked Courtney's vehicle to an area near an airport in Des Moines, Iowa. Law enforcement in Des Moines later found Courtney's vehicle in a parking lot at Des Moines International Airport.
¶7 At some point before officials in Iowa found Courtney's vehicle but after police determined that Nunez could not be located, police submitted "an emergency order" to Nunez's cell phone provider, seeking to track the location of his cell phone. Police determined that there were exigent circumstances at that time "because there was a homicide that [had] occurred, and the public was in danger." Pursuant to the emergency order, police received information that Nunez's cell phone was located "in the area of O'Hare Airport in Chicago Illinois." Police also learned that Nunez's phone was used to call a hotel in El Paso, Texas.
¶8 Joseph Welsch, a special agent with the Wisconsin Department of Justice, then called the hotel in El Paso and spoke to an employee, Martha Singh. Singh informed Welsch that Nunez had not yet checked into the hotel but was scheduled to do so later that night. Welsch spoke to Singh by phone again at around 12:30 a.m. on September 3, 2015, and learned that Nunez had checked into his room. Welsch subsequently contacted El Paso law enforcement, who then arrested Nunez at around 6:30 a.m. that day.
¶9 Police also later obtained records detailing transactions on Courtney's debit card. Those records revealed that in the early morning of September 2, 2015, Nunez had purchased, and then later cancelled, a Greyhound Bus ticket in his name from Des Moines to El Paso. The records also showed that Nunez used Courtney's debit card on September 2 to reserve his hotel room in El Paso and to purchase his plane ticket from Des Moines to El Paso, with a layover at O'Hare International Airport.
¶10 On September 4, 2015, police searched Nunez's Wisconsin hotel room and the dumpster behind the hotel. In the dumpster, police found a clear plastic bag containing "hardly worn" camouflage tennis shoes that matched a description of the shoes Nunez typically wore. Police later determined that stains on those shoes contained traces of blood and Courtney's DNA. In addition, a small digital voice recorder was found tucked inside one of the shoes. That device contained nearly fifty hours of recordings, which included Courtney's voice, Matthew Kari's voice (a man who spoke to Courtney by telephone), and a man's voice speaking "broken English."
¶11 Doctor Michael McGee performed autopsies on both of the victims' bodies. McGee found that Courtney had been stabbed twenty-nine times near her neck, which caused extensive hemorrhaging and eventually led to her death. Similarly, Jasmine's cause of death was determined to be four stab wounds around her neck area. In addition, McGee noted other injuries on Jasmine's body, such as burns on her legs, "pinpoint hemorrhages" in her face, and "injuries to the external genitalia."
¶12 The State charged Nunez with two counts of first-degree intentional homicide and one count each of operating a motor vehicle without the owner's consent, unauthorized possession of an individual's personal identifying documents, and arson of a building. The case proceeded to trial, whereupon a jury found Nunez guilty of all counts. The circuit court subsequently sentenced Nunez to consecutive life sentences without eligibility for extended supervision on the first-degree intentional homicide counts, and it imposed other concurrent sentences on the remaining counts. The court also ordered Nunez to pay a total of $196,054.46 in restitution.
¶13 Nunez subsequently filed a postconviction motion seeking a new trial based on several claims of ineffective assistance of counsel and on allegedly erroneous evidentiary rulings. In particular, Nunez claimed that his trial attorneys were ineffective for not objecting to: (1) the restitution award (2) evidence from the warrantless search of his cell phone location; (3) hearsay evidence; (4) testimony about Nunez's ability to speak English; (5) testimony regarding Jasmine's "sexual injuries"; and (6) testimony concerning the contents of the digital recording. Nunez also challenged the circuit court's decisions to permit testimony regarding his statements to others concerning Courtney and testimony regarding Jasmine's "sexual injuries."
¶14 The circuit court held a Machner[1] hearing on Nunez's motion, at which Nunez's two trial attorneys and the prosecutor testified. The State noted at the beginning of the hearing that it would not contest Nunez's ineffective assistance of counsel claim regarding restitution, and it agreed Nunez should receive a restitution hearing. The court accepted the State's concession and scheduled a restitution hearing for a later date. Following the hearing, the court issued a written decision denying all of Nunez's remaining postconviction claims. The court also later awarded restitution in the same amount previously awarded, after a court commissioner held a hearing on the matter.
¶15 Nunez appeals, renewing his postconviction claims and challenging the new restitution order. Additional facts will be noted as necessary below.
I. Ineffective assistance of counsel
¶16 A criminal defendant has the constitutional right to effective assistance of counsel. State v. Sholar 2018 WI 53, ¶32, 381 Wis.2d 560, 912 N.W.2d 89. To prevail on an ineffective assistance of counsel claim, the defendant bears the burden of proving: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Id. A court need not address both components of this inquiry if the defendant does not make a sufficient showing on one. State v. Smith, 2003 WI.App. 234, ¶15, 268 Wis.2d 138, 671 N.W.2d 854.
¶17 A defendant can establish deficient performance by showing that his or her trial counsel's performance fell below "an objective standard of reasonableness." State v. Savage, 2020 WI 93, ¶28, 395 Wis.2d 1 951 N.W.2d 838 (citation omitted). "Courts afford great deference to trial counsel's conduct, presuming that it 'falls within the wide range of reasonable professional assistance.'" Id. (citation omitted). "An attorney does not perform deficiently by failing to make a losing argument." State v. Jacobsen, 2014 WI.App. 13, ¶49, ...
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