State v. Ochoa

Citation404 Wis.2d 261,978 N.W.2d 501,2022 WI App 35
Decision Date30 June 2022
Docket NumberAppeal No. 2020AP1981-CR
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Sergio Moises OCHOA, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

404 Wis.2d 261
978 N.W.2d 501
2022 WI App 35

STATE of Wisconsin, Plaintiff-Respondent,
Sergio Moises OCHOA, Defendant-Appellant.

Appeal No. 2020AP1981-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: February 24, 2022
Opinion Filed: June 30, 2022

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven Roy, Law Office of Steven Roy.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of John A. Blimling, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Gundrum, P.J., Neubauer and Grogan, JJ.


404 Wis.2d 266

¶1 Sergio Moises Ochoa appeals from a judgment entered after a jury found him guilty of two counts of first-degree reckless homicide, contrary to WIS. STAT. § 940.02(1) (2019-20).1 Ochoa argues the trial court violated his constitutional right to

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present a defense when it: (1) excluded evidence about the victims’ past violent acts; (2) excluded three of his proposed expert witnesses; and (3) limited his testimony about why he returned to the home of one of the victims in the middle of the night. He further contends the trial court erroneously exercised its discretion when it refused to modify WIS JI—CRIMINAL 1016 to include within it a portion of WIS JI—CRIMINAL 805. We affirm.


¶2 In August 2017, the State charged Ochoa with two counts of first-degree intentional homicide arising out of an incident that occurred in the early morning hours of July 30, 2017. The victims were Luis Garcia, who was Ochoa's cousin, and a friend, Fernando Lopez. Ochoa pled not guilty and asserted at trial that he shot both men in self-defense when an argument arose about why Ochoa changed his mind about having Garcia act as the godfather for Ochoa's son's First Communion. As a part of his self-defense case, Ochoa argued that the combination of the alcohol and cocaine in Garcia's and Lopez's blood caused them to act erratically and threaten Ochoa, which caused Ochoa to believe he needed to shoot them to survive.2

¶3 Ochoa filed thirty-eight motions in limine. As material here, in support of his self-defense theory, Ochoa filed a motion seeking to introduce evidence that "related to past acts of violence" of both victims,

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which is commonly referred to as McMorris evidence.3 The State objected to Ochoa's McMorris evidence, asserting that Ochoa had failed to provide sufficient information to establish its relevance and that even, if it was relevant, it should be

978 N.W.2d 505

excluded under WIS. STAT. § 904.03 because any probative value was outweighed by its unfairly prejudicial nature. The trial court allowed Ochoa "to introduce reputation evidence" "regarding the decedents’ reputation for violence" but excluded "testimony regarding specific instances of violent conduct." Ochoa filed a motion asking the trial court to reconsider its decision denying the McMorris evidence. The trial court denied the motion for reconsideration as untimely and for failing to meet the legal standard for reconsideration.

¶4 Ochoa also filed a notice of his intent to present the testimony of ten expert witnesses.4 In response, the State filed a motion seeking to exclude seven of Ochoa's expert witnesses because each witness was either irrelevant or unreliable "under the Daubert[5 ] Standard" set forth in WIS. STAT. § 907.02(1), and it later submitted a brief laying out its objections to five of Ochoa's expert witnesses. After conducting a three-day Daubert hearing, the trial court excluded three of Ochoa's proffered expert witnesses—Marty

404 Wis.2d 269

Hayes, Alfonso Villaseñor, and Conrad Zvara—based on concerns about relevance and/or reliability.

¶5 Ochoa's jury trial took place over the course of seventeen days in October 2019. On days thirteen and fifteen, Ochoa testified in his own defense. During his testimony, Ochoa described his friendship with his cousin Garcia over the years, including how Garcia allowed Ochoa to live with him in California when Ochoa first moved to the United States from Mexico in 1997 or 1998 and how after visiting Garcia in Oostburg, where Garcia had relocated, Ochoa moved his family to Oostburg in 2011. Garcia allowed Ochoa's family to live with him in Oostburg for six-to-eight weeks until Ochoa found an apartment. Ochoa testified that at that time, his relationship with Garcia was "[v]ery good[,]" and they were "more than cousins"—they "were brothers"—and that Garcia was his closest friend. They continued to have a good relationship when Ochoa moved away from Oostburg for a period of time before ultimately returning to the area.

¶6 Ochoa testified that he asked Garcia to be his son's godfather prior to his son's April 2017 First Communion and that Garcia was "very joyful" about this request. In March 2017, while Garcia and his family were at Ochoa's house to plan for the First Communion celebration, Ochoa believed Garcia and Lopez, who was also present, were consuming cocaine at his house. Ochoa, upset because his son almost saw the drug use, asked Garcia and Lopez to leave. There was no "big argument or fight"—Garcia understood Ochoa's concern, gathered his family, and left.

¶7 Ochoa testified that after the March 2017 incident, he decided to choose a different godfather; however, Ochoa did not have a chance to tell Garcia about the change at that time because Garcia "went to

404 Wis.2d 270

live [in] Milwaukee." In May 2017, Ochoa and Garcia were hanging out together, and Ochoa planned to tell Garcia that a different family member was chosen to be his son's godfather at the April First Communion. However, Ochoa did not get a chance to do so because Garcia was "really sad" and "crying and telling [Ochoa] about this personal problem." Ochoa testified he did not tell Garcia "[b]ecause [Garcia] was really worried about something serious, so

978 N.W.2d 506

compared with what he was facing, [the godfather change] was really insignificant." Ochoa testified his son's First Communion had occurred in April 2017 without Garcia and that after May 2017, he did not see Garcia again until July 2017.

¶8 Ochoa told the jury that on July 29, 2017, his sister and her husband were visiting from Mexico and had brought asthma inhalers from Mexico. At about 10:30 or 11:00 p.m., Ochoa and his brother-in-law went over to Garcia's house to deliver some of the inhalers. Ochoa also brought a bucket of beer and rum as a gift for Garcia. Ochoa, his brother-in-law, Garcia, and Lopez all had a beer together. After about twenty or thirty minutes, Ochoa told Garcia he needed to get back home. Ochoa testified that he went home and slept for about two or three hours and then woke up because he remembered that his cousin Garcia "had been very insistent" about wanting to talk to Ochoa that night. The parties then argued about whether Ochoa could testify about statements Garcia had made to Ochoa that caused him to return to Garcia's home when Ochoa woke up at 2:00 a.m. that morning. Ultimately, the trial court allowed Ochoa to testify about his reason for returning to Garcia's home in the middle of the night.

¶9 Ochoa also told the jury he had recently obtained his concealed carry permit and had grown up

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learning how to use guns. The jury also learned that Ochoa did not take his gun into Garcia's home when he went there with his brother-in-law, but he did take the gun into the Garcia home when he went back at 2:00 a.m. on July 30th. Ochoa testified this was out of concern about a recent robbery in the area since he was going alone. Ochoa told the jury that when he first arrived at the Garcia home at 2:00 a.m., Garcia and Lopez were happy to see him but that things got heated when they began to argue about Ochoa's decision to not have Garcia as his son's First Communion godfather. Ochoa said Lopez had a pocketknife that he opened and closed "[m]aybe four or five times" and made threats that Ochoa felt meant they were going to kill him. The threats, spoken in Spanish, were interpreted as "you are so screwed," but Ochoa testified that he had interpreted them to be death threats, more like, "I'm going to kill you. You're going to die" or "[y]ou're gonna get screwed."6

¶10 Ochoa also testified that he began walking into the kitchen and then looped back through the living room about five times. He then tried to open the back door once but testified Garcia came up behind him with a knife and said he was not leaving. Ochoa walked back to the living room where he felt that he was about to be attacked. Ochoa shot Lopez first and then Garcia when Garcia lunged at him. Ochoa then left the home with the intent to go directly to the police

404 Wis.2d 272

department but did not arrive at the Sheboygan Police Department until about an hour after the shootings. During the drive, Ochoa tossed his gun holster out the window.

¶11 Garcia's son, J.G., was upstairs playing video games with two friends at the time of the shooting. J.G. and his friends heard the shots and got scared. They were afraid to go downstairs in case the shooter was still present, but eventually one of J.G.’s friends went out through the window and jumped down to the ground. The

978 N.W.2d 507

friend saw Garcia and Lopez lying on the living room floor, presumably shot to death, and then called J.G. to report what he saw before driving home. J.G. and the remaining friend then went downstairs, and J.G. woke up his uncle who lived with them and had been sleeping in his bedroom located on the main floor of the house. The uncle attempted CPR and called 911 because J.G. had not already done so.

¶12 When EMTs arrived, they determined both Garcia and Lopez were deceased. The Sheboygan Sheriff's Department and Police Department conducted an investigation. They located multiple bullets and multiple casings that were eventually connected to Ochoa's gun. Both Garcia and Lopez were shot multiple times. The police did not find any weapons in the living room at the Garcia home aside from the...

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