Lorenzo Johnson 295855
WCI PO Box 351
Waupun , Wi 53963
Hello World! My name is Lorenzo Johnson. I am also truly a victim in every which way imagined. And I am reaching out to you from a demise disposition from an actual innocent and indecent, unjust incarceration out of EMPATHY !
I wish I could write how much of a model inmate I have been but unfortunately I struggle with accurately following the rules and procedures accordingly. Even though I go for years on end without catching tickets for breaking institutional rules of the D.O.C. ,Mentally I find it difficult comprehending at times and conducting myself to all the rules of the institution. I don’t intend to make excuses but I do have psychological and emotional instabilities that I’m not proud of which limits my understanding and grasp.
People on the outside forget so quickly how racism plays an extreme role in life threatening decisions which race is target and exploited overwhelmingly unfavorable unfair by the Criminal Justice System for arrest and conviction which brings me to the next point. People also fail to understand, realize and acknowledge prisons don’t tend to provide real treatment for those of us who suffer from Mental and Emotional instabilities. And with no moral support by family and friends ,chances of receiving some type of cognizant programming to induce positive thinking and reduce negative thoughts are seemingly non-existing. The dynamics of this fact are also true for me; disturbing and distraughting which makes it hard to explain. The isolation of abandment already destroys the Potential Humanity within you but it is ten times worse when you have learning and emotional disabilities. Once upon a time I did have strong family ties, I guess the longer you’re incarcerated the less relevant you become to any and everybody.
I remain persistent at getting in any programs where I can receive treatment to improve any mental capabilities. In theory, verbally , and on paper, prisons may claim to provide proper programming and treatment, but there’s a lot of politics and favoritism involved for imnates in my position and from experience I basically strive in dire need of restoration from these programs as I attempt to rehabilitate myself with not much valid assistance provided by the institution. Only a minimum amount of inmates are granted and approved to attend cognizant programming and they are those who’s soon to be released. This is a maximum security institution design for inmates with astronomical time. Therefore, programs for prisoners who need proper treatment should be accessible equally to provide “Help” for all those in “Need” of it especially for those with bountiful mental emotional problems.
My Inmate Classification Report will reveal previous programs I’d signed up for but was discouraged from attending. Regardless of my learning disabilitie I continue to self-educate and rehabilitate myself to the best of my abilities and the best way I Know how even though by law the State suppose to provide treatment in an institutional setting instead of creating conditions, situations, and an atmosphere dissuading and condemning us through disciplinary segregation as a substitute to mental treatment. In my honest opinion without trying to seem bias withing these confined walls The reality of rehabilitation towards a productive release for those of us who follow the rues and take it upon ourselves to self-help-educate and continue to conjure any morals and values it takes to feel Humane is void and replaced by a cycle of calamity designed by the Department of Corrections to persistantly break your spirits literally, exploit ones’ weakness, uproot any sign of determination, wipe out individual personality that shapes you and makes you uniques, human and keeps you same. All the while unnuendo utilizing you as a tool; therefore, unfit for society to be released.
Sincerely from Mr. Lorenzo Johnson
Thursday
Friday
legal notice
LEGAL NOTICE
ALTHOUGH THERE'S AN OVERWHELMINGLY MAJORITY GUILTY INDIVIDUALS IN PRISON CONVICTED OF CRIMES FOR WHICH THEY ARE INCARCERATED FOR; THERE'S ALSO PEOPLE SUCH AS MYSELF WHOM ARE INNOCENT, "CONTRARY TO POPULAR STEROTYPICAL BELIEF," BUT FOUND GUILTY BASE ON CIRCUMSTANTIAL EVIDENCE, CONSTRUCTIVE LIES, INCONSISTENT TESTIMONY AND PROSECUTORIAL MISCONDUCT.
ONE FACT ABOUT OUR JUSTICE SYSTEM IS, "MONEY EQUALS JUSTICE" (CONSTITU¬TIONALLY SOUND CONVICTION)/ "NO MONEY EQUALS NO JUSTICE" (UNCONSTITUTIONALLY SOUND CONVICTION). WHETHER WE LIKE IT OR NOT THE UNITED STATES CONSTITUTION APPLIES TO EVERY CITIZEN OF THESE UNITED STATES.
DUE TO NOT HAVING THE PROPER REPRESENTATION (DEFENSE ATTORNEY) UNDER¬STANDING OF THE LAW AND LACK OF EDUCATION, I'VE BEEN UNABLE TO DEMONSTRATE EVIDENCE THAT'LL HELP EXONERATE ME. I'M INDIGENT SEEKING FOR SOMEONE.
THIS IS A PURE LEGITIMATE PLEA, ANY CONTRIBUTION IS APPRECIATED! I HAVE NO GRANDEUR EXPECTATIONS OF EVERYONE WHO READS THIS CAN FINANCIALLY MAKE A CONTRIBUTION. BUT OUT OF GREAT EMPATHY, GOOD FAITH, AND CONSCIOUS YOU WILL SEE THE TRUTH IN THE MATTER OF MY SITUATION (CASE) AND ASSIST IN DONATING A BIT OF TIME, OR WHATEVER YOU CAN, WHETHER IT BE CON¬TACTING ME PERSONALLY TO ASSIST IN ACCESS TO THE INTERNET WHICH I DESPER¬ATELY AM IN NEED OF, PROVIDE INFORMATION TO PRODUCTIVE AND POSITIVE ORGANIZA¬TIONS, INTRODUCE OR EXPOSURE TO SOMEBODY WHO MAY BE INTERESTED, PROVIDE BOOKS, WORDS OF ENCOURAGEMENT, ADVICE, ACQUAINTANCE AND ANY OTHER RESOURCES YOU MAY OR MAY NOT FIND VITAL.
IF YOU CAN VOLUNTEER IN RESEARCH OF ONLINE INFORMATION, COPIES OF' LEGAL AND MISCELLANEOUS MATERIAL I SINCERELY AND DEARLY WOULD APPRECIATE ANY HELP IN THIS MATTER.
WITH THE ABOVE MENTIONED IN MIND I, LORENZO JOHNSON, AM ATTEMPTING TO START A LEGAL FUND AIM AT HELPING MYSELF GET THE LEGAL JUSTICE (CONSTITU¬TIONALLY SOUND CONVICTION) I AM GUARANTEED BY THE CONSTITUTION. .
ALL PROCEEDS DONATED WILL GO TOWARDS LEGAL ASSISTANCE! IF YOU ARE ABLE TO DONATE TIME TO HELP RESEARCH THE CONSTITUTION, LAW, ETC. PLEASE CONTACT ME AS WELL. YOUR TIME IS AS VALUABLE AS YOUR MONEY. IF YOU KNOW SOMEONE WHO'S BEEN WRONGLY CONVICTED, (LIKE MYSELF) PLEASE HAVE THEM CONTACT ME. AGAIN, IF YOU KNOW OF ANY ORGANIZATIONS WHO DONATE TIME, BOOKS, ADVICE, INTERNET SPACE, PLEASE SEND THERE INFORMATION TO ME AS WELL.
I, LORENZO JOHNSON, 295855 W.C.I., P»O« BOX 351, WAUPUN, WI. 53963,
STAND CONVICTED OF A CRIME I DIDN'T COMMIT! INADEQUATE REPRESENTATION (PUBLIC DEFENDER) AT TRIAL COUPLED WITH NO FORMAL EDUCATION HADE IT IMPOSSIBLE FOR ME TO PROVE INNOCENCE BEYOND A REASONABLE DOUBT- HOWEVER, HOPEFULLY WITH SOME HELP I WILL RECEIVE JUSTICE.
SINCERELY; THANK YOU FOR YOUR TIME!
ALTHOUGH THERE'S AN OVERWHELMINGLY MAJORITY GUILTY INDIVIDUALS IN PRISON CONVICTED OF CRIMES FOR WHICH THEY ARE INCARCERATED FOR; THERE'S ALSO PEOPLE SUCH AS MYSELF WHOM ARE INNOCENT, "CONTRARY TO POPULAR STEROTYPICAL BELIEF," BUT FOUND GUILTY BASE ON CIRCUMSTANTIAL EVIDENCE, CONSTRUCTIVE LIES, INCONSISTENT TESTIMONY AND PROSECUTORIAL MISCONDUCT.
ONE FACT ABOUT OUR JUSTICE SYSTEM IS, "MONEY EQUALS JUSTICE" (CONSTITU¬TIONALLY SOUND CONVICTION)/ "NO MONEY EQUALS NO JUSTICE" (UNCONSTITUTIONALLY SOUND CONVICTION). WHETHER WE LIKE IT OR NOT THE UNITED STATES CONSTITUTION APPLIES TO EVERY CITIZEN OF THESE UNITED STATES.
DUE TO NOT HAVING THE PROPER REPRESENTATION (DEFENSE ATTORNEY) UNDER¬STANDING OF THE LAW AND LACK OF EDUCATION, I'VE BEEN UNABLE TO DEMONSTRATE EVIDENCE THAT'LL HELP EXONERATE ME. I'M INDIGENT SEEKING FOR SOMEONE.
THIS IS A PURE LEGITIMATE PLEA, ANY CONTRIBUTION IS APPRECIATED! I HAVE NO GRANDEUR EXPECTATIONS OF EVERYONE WHO READS THIS CAN FINANCIALLY MAKE A CONTRIBUTION. BUT OUT OF GREAT EMPATHY, GOOD FAITH, AND CONSCIOUS YOU WILL SEE THE TRUTH IN THE MATTER OF MY SITUATION (CASE) AND ASSIST IN DONATING A BIT OF TIME, OR WHATEVER YOU CAN, WHETHER IT BE CON¬TACTING ME PERSONALLY TO ASSIST IN ACCESS TO THE INTERNET WHICH I DESPER¬ATELY AM IN NEED OF, PROVIDE INFORMATION TO PRODUCTIVE AND POSITIVE ORGANIZA¬TIONS, INTRODUCE OR EXPOSURE TO SOMEBODY WHO MAY BE INTERESTED, PROVIDE BOOKS, WORDS OF ENCOURAGEMENT, ADVICE, ACQUAINTANCE AND ANY OTHER RESOURCES YOU MAY OR MAY NOT FIND VITAL.
IF YOU CAN VOLUNTEER IN RESEARCH OF ONLINE INFORMATION, COPIES OF' LEGAL AND MISCELLANEOUS MATERIAL I SINCERELY AND DEARLY WOULD APPRECIATE ANY HELP IN THIS MATTER.
WITH THE ABOVE MENTIONED IN MIND I, LORENZO JOHNSON, AM ATTEMPTING TO START A LEGAL FUND AIM AT HELPING MYSELF GET THE LEGAL JUSTICE (CONSTITU¬TIONALLY SOUND CONVICTION) I AM GUARANTEED BY THE CONSTITUTION. .
ALL PROCEEDS DONATED WILL GO TOWARDS LEGAL ASSISTANCE! IF YOU ARE ABLE TO DONATE TIME TO HELP RESEARCH THE CONSTITUTION, LAW, ETC. PLEASE CONTACT ME AS WELL. YOUR TIME IS AS VALUABLE AS YOUR MONEY. IF YOU KNOW SOMEONE WHO'S BEEN WRONGLY CONVICTED, (LIKE MYSELF) PLEASE HAVE THEM CONTACT ME. AGAIN, IF YOU KNOW OF ANY ORGANIZATIONS WHO DONATE TIME, BOOKS, ADVICE, INTERNET SPACE, PLEASE SEND THERE INFORMATION TO ME AS WELL.
I, LORENZO JOHNSON, 295855 W.C.I., P»O« BOX 351, WAUPUN, WI. 53963,
STAND CONVICTED OF A CRIME I DIDN'T COMMIT! INADEQUATE REPRESENTATION (PUBLIC DEFENDER) AT TRIAL COUPLED WITH NO FORMAL EDUCATION HADE IT IMPOSSIBLE FOR ME TO PROVE INNOCENCE BEYOND A REASONABLE DOUBT- HOWEVER, HOPEFULLY WITH SOME HELP I WILL RECEIVE JUSTICE.
SINCERELY; THANK YOU FOR YOUR TIME!
Tuesday
Overview of Case
Lorenzo Johnson#295055 W.C.I P.O Box 351 Waupun, WI 53963 Defendant, prose
I was wrongfully convicted in a crime I did not commit . Posted are some excerpts from my trial. The brief is included, l could not post the appendix in its entirety but the brief is supported by the appendix and if you are interested in the brief I will send you a copy of the appendix, but you can read the brief in its entirety posted here on this site too...
Affidavit and testimony of witnesses 
transcribed text of affidavit of Derrick Howard
Racine county 96CF938 Affidavit of December 24, 2007 In the morning of August 19, 1996 me and Head pulled up to 12th and Grand some guys begin to shoot in our direction after being fired upon first I seened Head fire back with a gun in his left hand from the drivers side window I got out of the car and begin to run in the opposite direction a guy began to shoot at me and that’s when I begin to return fire. After seeing Mr Johnson lawyer in Racine County Jail I tried to talk to him about Head was the one with me whose friend of my brother Head was going to say he was at the movies on the day and morning of August 19, 1996 as his alibi. I and my brother was ready to provide this information to Mr Johnson lawyer.
Respectfully submitted Affiant,
(signature Derrick Howard)
Derrick Howard #261702
Waupun Corr Inst
Post Office Box 351
Waupun, Wi 53963-0351
Subscribed and sworn to me on the 15th day of January, 2008
Notary public signature
Transcribed Court testimoney of Thomas Avery (from document Picture on right above)
THOMAS AVERY APPRISED THE POLICE THAT THE APPELLANT WAS THE DRIVER OF THE CAR (A:142, 143, 144, 145-146), BUT TESTIFIED AT THE APPELLANT'S TRIAL TO THE CONTRARY: .
Q:... DO YOU REMEMBER GIVING THAT TESTIMONY AT A HEARING A FEW MONTHS AFTER THE SHOOTING?
A: YES I DO.
Q: WAS THAT THE TRUTH?
A: BUT SOMEBODY. I DIDN'T SEE HIS FACE, BUT PEOPLE THAT WAS AT THE SCENE, THEY WAS LIKE IT WAS HIM SO LIKE. . .
Q:. AT THE TIME YOU TOLD HIM THAT THE PERSON WHO WAS DRIVING THE CAR WAS NAMED REMO. WHY DID YOU SAY THAT?
A: BECAUSE PEOPLE THAT WAS AT THE SCENE THAT WAS ON THE OTHER SIDE OF THE STREET, THEY WAS SAYING IT WAS HIM.
Q: OKAY.
A: WILLIAMS AND ALL THEM. SO THAT'S WHAT I SAID.
Q: OKAY. BUT YOU NEVER SAW HIM?
A : NO ! " ( EMPHASIS ADDED )
[ A:15a: 11-10: 159:12-21 ) UPON CROSS EXAMINATION THOMAS AVERY PERJURED HIMSELF UNDER OATH DENYING THAT HE TOLD POLICE WHO THE SHOOTER WAS.
(A: 161: 16-10) THE ONLY REASON THAT THOMAS AVERY POINTED THE FINGER AT THE APPELLANT WAS BECAUSE HE HAD A PROBLEM WITH THE APPELLANT ON 8/17/96 (A-.189: 1-5) THAT DERRICK HOWARD AND THE APPELLANT HAD ROBBED HIM (j\:192: 15-18) , AND THERE WAS NO EVIDENCE OF A POLICE REPORT OF ANY ROBBERY NOR CORROBORATION OF THE ROBBERY.
Presentence Investigation
( again, click on document pictures below to view full size documents AND/OR read transcribed texts below pictures.)
PERSONAL HISTORY
EDUCATION/EMPLOYMENT/FINANCIAL: Mr. Johnson reported he is not a high school graduate. He reported that he was attending the 10th grade here at Park High School, but dropped out doe to emotional and mental difficulties. He stated he only remembers being in the 7th grade and that he had good attendance. Mr. Johnson stated he had no problems up to the 7th grade.
Mr. Johnson stated he never worked at any type of employment to this day. When asked how he obtained money to buy things, he reported, "I hustled. I did anything to make a buck."
IMPRESSIONS AND RECOMMENDATIONS
AGENT'S IMPRESSIONS: Mr. Johnson is a 20 year old male with some criminal history, before the court convicted of Party to a Crime, 1st Degree Intentional Homicide While Armed. He reported he has never worked before or obtained a high school diploma. He appears to have some difficulty in talking about his life history and this case. There also appears to be some inconsistencies with him reporting information to this agent and his writing the information down on forms. He was very agitated in the beginning of this interview. It appears to this agent that Mr. Johnson does not appear to understand the severity of this crime. He did mention he felt sorry for the family's loss. Mr. Johnson did state he has been in jail for a long time and it appears to this agent he fears the worst.
INTENSIVE SANCTIONS: The Intensive Sanctions Program is not currently accepting referrals.
AGENT'S RECOMMENDATIONS: To this agent, Mr. Johnson appears to be a troubled young man trying to cope with this crime. He continues to state he is innocent and was aware of the evidence against him. He does have some involvement with the legal system based on his criminal record. Although Mr. Johnson states he is innocent and not certain of the events or cannot comment on them, he was still found guilty by a jury of these crimes.
It is, therefore, respectfully recommended that the defendant, Lorenzo Johnson be sentenced to the Wisconsin State Penal System for a lengthy period of time.
9 DEFENDANT: Dangerous, huh?
10 THE COURT: If I put you on the street today,
11 you'd be out in the community being absolutely as
12 dangerous as you were the day you came in and putting
13 peoples lives in jeopardy, and that's just not
14 acceptable in society.
15 Your degree of culpability is absolutely
16 total. You show a total lack of remorse and uncaring
17 for the fact that this young person's life was snuffed
18 out.
I was wrongfully convicted in a crime I did not commit . Posted are some excerpts from my trial. The brief is included, l could not post the appendix in its entirety but the brief is supported by the appendix and if you are interested in the brief I will send you a copy of the appendix, but you can read the brief in its entirety posted here on this site too...
Affidavit and testimony of witnesses ( click on document pictures below to view full size documents AND/OR read transcribed texts below pictures.)
transcribed text of affidavit of Derrick HowardRacine county 96CF938 Affidavit of December 24, 2007 In the morning of August 19, 1996 me and Head pulled up to 12th and Grand some guys begin to shoot in our direction after being fired upon first I seened Head fire back with a gun in his left hand from the drivers side window I got out of the car and begin to run in the opposite direction a guy began to shoot at me and that’s when I begin to return fire. After seeing Mr Johnson lawyer in Racine County Jail I tried to talk to him about Head was the one with me whose friend of my brother Head was going to say he was at the movies on the day and morning of August 19, 1996 as his alibi. I and my brother was ready to provide this information to Mr Johnson lawyer.
Respectfully submitted Affiant,
(signature Derrick Howard)
Derrick Howard #261702
Waupun Corr Inst
Post Office Box 351
Waupun, Wi 53963-0351
Subscribed and sworn to me on the 15th day of January, 2008
Notary public signature
Transcribed Court testimoney of Thomas Avery (from document Picture on right above)
THOMAS AVERY APPRISED THE POLICE THAT THE APPELLANT WAS THE DRIVER OF THE CAR (A:142, 143, 144, 145-146), BUT TESTIFIED AT THE APPELLANT'S TRIAL TO THE CONTRARY: .
Q:... DO YOU REMEMBER GIVING THAT TESTIMONY AT A HEARING A FEW MONTHS AFTER THE SHOOTING?
A: YES I DO.
Q: WAS THAT THE TRUTH?
A: BUT SOMEBODY. I DIDN'T SEE HIS FACE, BUT PEOPLE THAT WAS AT THE SCENE, THEY WAS LIKE IT WAS HIM SO LIKE. . .
Q:. AT THE TIME YOU TOLD HIM THAT THE PERSON WHO WAS DRIVING THE CAR WAS NAMED REMO. WHY DID YOU SAY THAT?
A: BECAUSE PEOPLE THAT WAS AT THE SCENE THAT WAS ON THE OTHER SIDE OF THE STREET, THEY WAS SAYING IT WAS HIM.
Q: OKAY.
A: WILLIAMS AND ALL THEM. SO THAT'S WHAT I SAID.
Q: OKAY. BUT YOU NEVER SAW HIM?
A : NO ! " ( EMPHASIS ADDED )
[ A:15a: 11-10: 159:12-21 ) UPON CROSS EXAMINATION THOMAS AVERY PERJURED HIMSELF UNDER OATH DENYING THAT HE TOLD POLICE WHO THE SHOOTER WAS.
(A: 161: 16-10) THE ONLY REASON THAT THOMAS AVERY POINTED THE FINGER AT THE APPELLANT WAS BECAUSE HE HAD A PROBLEM WITH THE APPELLANT ON 8/17/96 (A-.189: 1-5) THAT DERRICK HOWARD AND THE APPELLANT HAD ROBBED HIM (j\:192: 15-18) , AND THERE WAS NO EVIDENCE OF A POLICE REPORT OF ANY ROBBERY NOR CORROBORATION OF THE ROBBERY.
Presentence Investigation
( again, click on document pictures below to view full size documents AND/OR read transcribed texts below pictures.)
TRANSCRIBED
Pre-Sentence Investigation
Johnson, Lorenzo
PRESENT OFFENSE
DESCRIPTION OF OFFENSE: Please refer to the attached Criminal Complaint.
OFFENDER'S VERSION: The above named defendant was interviewed by this agent in the Racine County Jail. In an interview with the defendant Lorenzo Johnson, he stated that he could not talk, explain or comment on this case due to the fact he is appealing the decision and the fact that his lawyer informed him not to make any comment.
This agent then asked Lorenzo Johnson how he felt about the charge and being found guilty. Mr. Johnson stated he was innocent. “People can read what they want to read in papers but that is how society is", he replied. Mr. Johnson also stated he did not understand why there needed to be a Pre-Sentence Investigation when everyone knew what happened. Mr. Johnson went on to state he could not speculate anymore due to the appeal process. The defendant did state that he was upset about being charged with this crime. When asked if he knew the victim, Mr. Johnson stated he did not. When asked how he felt about the victim's family, he replied he was sorry for their loss.
Johnson, Lorenzo
PRESENT OFFENSE
DESCRIPTION OF OFFENSE: Please refer to the attached Criminal Complaint.
OFFENDER'S VERSION: The above named defendant was interviewed by this agent in the Racine County Jail. In an interview with the defendant Lorenzo Johnson, he stated that he could not talk, explain or comment on this case due to the fact he is appealing the decision and the fact that his lawyer informed him not to make any comment.
This agent then asked Lorenzo Johnson how he felt about the charge and being found guilty. Mr. Johnson stated he was innocent. “People can read what they want to read in papers but that is how society is", he replied. Mr. Johnson also stated he did not understand why there needed to be a Pre-Sentence Investigation when everyone knew what happened. Mr. Johnson went on to state he could not speculate anymore due to the appeal process. The defendant did state that he was upset about being charged with this crime. When asked if he knew the victim, Mr. Johnson stated he did not. When asked how he felt about the victim's family, he replied he was sorry for their loss.
PERSONAL HISTORY
EDUCATION/EMPLOYMENT/FINANCIAL: Mr. Johnson reported he is not a high school graduate. He reported that he was attending the 10th grade here at Park High School, but dropped out doe to emotional and mental difficulties. He stated he only remembers being in the 7th grade and that he had good attendance. Mr. Johnson stated he had no problems up to the 7th grade.
Mr. Johnson stated he never worked at any type of employment to this day. When asked how he obtained money to buy things, he reported, "I hustled. I did anything to make a buck."
IMPRESSIONS AND RECOMMENDATIONS
AGENT'S IMPRESSIONS: Mr. Johnson is a 20 year old male with some criminal history, before the court convicted of Party to a Crime, 1st Degree Intentional Homicide While Armed. He reported he has never worked before or obtained a high school diploma. He appears to have some difficulty in talking about his life history and this case. There also appears to be some inconsistencies with him reporting information to this agent and his writing the information down on forms. He was very agitated in the beginning of this interview. It appears to this agent that Mr. Johnson does not appear to understand the severity of this crime. He did mention he felt sorry for the family's loss. Mr. Johnson did state he has been in jail for a long time and it appears to this agent he fears the worst.
INTENSIVE SANCTIONS: The Intensive Sanctions Program is not currently accepting referrals.
AGENT'S RECOMMENDATIONS: To this agent, Mr. Johnson appears to be a troubled young man trying to cope with this crime. He continues to state he is innocent and was aware of the evidence against him. He does have some involvement with the legal system based on his criminal record. Although Mr. Johnson states he is innocent and not certain of the events or cannot comment on them, he was still found guilty by a jury of these crimes.
It is, therefore, respectfully recommended that the defendant, Lorenzo Johnson be sentenced to the Wisconsin State Penal System for a lengthy period of time.
Court transcription (from document picture on right above)
24 Defendant: Yeah, I want to say something I
25 want to say something to the victim family, you know.
1 I'm sorry your son is gone, but I didn't have nothing to
2 do with shooting your son. You should ask the people
3 that were with him. You point the finger at me, you say
4 I do not have remorse. You never had a conversation, so
5 how do you know. Only thing you know is what he say
6 about me. Therefore she can't get to me. I want to say
7 something to her. And your Honor, you going to go –
8 THE COURT: I'm sorry, could you speak up?
9 DEFENDANT: You are going to do what you're
10 going to do anyway, you know. I've been down here for
11 two years incarcerated. I know how you all work. I
12 know everybody down here work with each other. The only
13 way I could of justice is I had a paid lawyer, you know.
14 I mean, he only do what he can do, you know, and he do
15 whatever to make you all happy, you know. That's what I
16 see, and that's the way it is around here. Things are
17 fucked up around here. That's all I got to say, sir.
4 THE COURT: We have the testimony about the
5 robbery, robbery that you committed several days before
6 this offense. You're a young man who is, very short, an
7 incredibly dangerous individual, and if I put you on the8 street --
24 Defendant: Yeah, I want to say something I
25 want to say something to the victim family, you know.
1 I'm sorry your son is gone, but I didn't have nothing to
2 do with shooting your son. You should ask the people
3 that were with him. You point the finger at me, you say
4 I do not have remorse. You never had a conversation, so
5 how do you know. Only thing you know is what he say
6 about me. Therefore she can't get to me. I want to say
7 something to her. And your Honor, you going to go –
8 THE COURT: I'm sorry, could you speak up?
9 DEFENDANT: You are going to do what you're
10 going to do anyway, you know. I've been down here for
11 two years incarcerated. I know how you all work. I
12 know everybody down here work with each other. The only
13 way I could of justice is I had a paid lawyer, you know.
14 I mean, he only do what he can do, you know, and he do
15 whatever to make you all happy, you know. That's what I
16 see, and that's the way it is around here. Things are
17 fucked up around here. That's all I got to say, sir.
4 THE COURT: We have the testimony about the
5 robbery, robbery that you committed several days before
6 this offense. You're a young man who is, very short, an
7 incredibly dangerous individual, and if I put you on the8 street --
9 DEFENDANT: Dangerous, huh?
10 THE COURT: If I put you on the street today,
11 you'd be out in the community being absolutely as
12 dangerous as you were the day you came in and putting
13 peoples lives in jeopardy, and that's just not
14 acceptable in society.
15 Your degree of culpability is absolutely
16 total. You show a total lack of remorse and uncaring
17 for the fact that this young person's life was snuffed
18 out.
Wednesday
Appeal Title Page
STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT II
DISTRICT II
APPEAL NO. 2008-AP-1950
______________________________________________________
STATE OF WISCONSIN,
PLAITIFF-RESPONDANT,
STATE OF WISCONSIN,
PLAITIFF-RESPONDANT,
L.C. CASE NO. 96-CF-940
VS.
LORENZO JOHNSON,
DEFENDANT-APPELLANT
LORENZO JOHNSON,
DEFENDANT-APPELLANT
____________________________________________________
ON APPEAL FROM THE CIRCUIT COURT FOR RACINE COUNTY,
THE HONORABLE CHARLES CONSTANTINE, PRESIDING
ON APPEAL FROM THE CIRCUIT COURT FOR RACINE COUNTY,
THE HONORABLE CHARLES CONSTANTINE, PRESIDING
______________________________________________________
BRIEF-IN-CHIEF OF THE DEFENDANT-APPELLANT
___________________________________________________
LORENZO JOHNSON-295855
W.C.I.
P.O. BOX 351
WAUPUN.WI. 53963
DEFENDANT-APPELLANT. PRO SE
GARY WEBER. A.A.G.
DEPT. OF Justices
P.O. BOX 7857
MADISON, WI. 53707-7857
Attorney for the Plaintiff-Respondent.
Tuesday
Table of Contents
TABLE OF CONTENTS
STATEMENT OF ISSUES PRESENTED FOR REVIEW——————-1
STATEMENT ON ORAL ARGUMENT——————————————3
STATEMENT OF THE CASE—————————————-4
ARGUMENT——————————————7
The Trial Court erroneously viewed the holdings in Loop v. State, 2d. 694, 696 (1974) denying the Defendant's Postconviction Motion on 3/27/08 reasoning that the Defendant could have raised the instant issues on Direct Appeal, when the Defendant did not pursue a Direct Appeal————————————————7
Trial Counsel was prejudicially deficient in the pre-trial stage failing to investigate Co-Defendant Derrick Howard whom would have provided information under the Legitimate Tendency Test, that a third person could have committed the crime absent the requirement to establish guilt of third persons to the degree of certainty as a requisite to sustain a conviction in order for this type of evidence to be admitted to a jury————8
The Trial Court erroneously viewed §.904.03 and §.904.04(2)Stats. allowing state witness Thomas Avery under the rules of hearsay to testify at trial that the Defendant had self-inflicted a gun-shot wound showcasing a propensity to use firearms nexus to the commission of the predicated offense of 8/19/96————13
Defense Counsel's unfamiliarity with §.805.13(5) Stats, endorsed the trial court's erroneous view of said statute in its failure to re-instruct the jury causing the jury to reach a verdict based on evidence not receive
at trial—————————————————-——————————15
Trial Counsel's erroneous view of a Goodchild Hearing deprived the Defendant of his right to take the stand in order to make a record of his version of the facts and circumstances under which the Defendant's statement was given——————————————16
The Trial record Ascertains that juror Gretchen L. Wahl, no. 276, possessed subjective bias sentiments in voir dire based on interracial incident transpiring in 1983, wherein her brother -in-law's sister was killed by a firearm in a drive by shooting, admitting on the record a biasness affecting her impartiality at trial————————18
An unnamed juror provided incompetent responses on voir dire to material questions alerting the trial court after two (2) days of trial that she knew State witnesses, lodius Barker and Susan Foster showcasing subjective bias towards the Defendant—19
The Prosecutor went beyond the providence of reasoning of the evidence informing the jury in its argument that the Defendants had admitted that he had operated the vehicle utilized in the commission of the offense on 8/19/96 in the a.m., where such statement is not a matter of record————————————————21
Trial Counsel failed to place a proper objection on the record allowing Thomas Avery to inform the jury of the Defendant's alleged involvement in an armed robbery with Thomas Avery as a victim, prior to the incident of 8/19/96, which should've been a matter of a Motion in Limine—————————————————22
Trial Counsel failed to move for a mistrial when the prosecutor pursued an uninterrupted line of questioning, exposing the Defendant to the jury that he was in pre-trial custody___________________________24
CONCLUSION——————————————————————————26
CASES CITED
II
TABLE OF CONTENTS DESCRIPTION PAGE NO.
AFTER HOUR WELDING (1982)
108 WIS. 2D. 734, 324 N.W. 2D. 686—————————————21
ESTELLE V. WILLIAMS (1976)
425 U.S. 501, 96 S. Ct. 1691————————————————24-25
HARTUNG V. HARTUNG (1981)
102 WIS. 2D. 59, 306 N.W. 147———————-———————8
LACLAW V. STATE (1968)
41 WIS. 2D. 177, 163 N.W. 147———————————————17
LOOP V. STATE (1974)
69 WIS. 2D. 499, 222 N.W. 2D. 694—————————————1,7,8
MULKOUVICH V. STATE (1976)
73 WIS. 2D. 464, 243 N.W. 2D. 198———————————-——15
STATE V. CARTER (2002)
250 WIS. 2D. 851, 641 N.W. 2D. 517——————————-——18
STATE V. PENNY (1984)
120 WIS. 2D. 614, 357 N.W. 2D. 12—————————————-9
STATE V. EDELBURG (1986)
129 WIS. 2D. 394, 384, N.W. 2D. 724—————————————16
STATE V. FELTON (1983)
110 WIS. 2D. 485, 329 N.W. 2D. 161—————————————10-11
STATE V. HAYES (2004)
273 WIS. 2D. 1——————————————————————16,21
STATE V. HUTNIK (1968)
39 WIS. 2D. 754,159 N.W. 2D. 733———————————————13-14
STATE V. JACKSON (1997) 212 WIS. 2D. 203, 567 N.W. 2D. 920——————————————20
STATE V. JORGENSON (2008) 2008 WIS. 60)———————————————————————22
STATE V. MACHNER (1979)
92 WIS. 2D. 797——————————————————————11
STATE V. MESSELT (1994) 185 WIS. 2D. 254, 518 N.W. 2D. 232—————————————20
STATE V. NORWOOD (2005) 287 WIS. 2D. 679, 706 N.W. 2D. 683————————————15
STATE V. RICHARDSON (1969) 49 WIS. 2D. 75,170 N.W. 2D. 775——————21
CASES CITED STATE V. SPRAGGEN(1977)
77 WIS. 2D. 89, 252 N.W. 2D. 94————————————24
STATE V. SULLVIAN(1998)
216 WIS. 2D. 768. 576 N.W. 2D. 30——————————23
STATE V. THIELI2003)
264 WIS. 2D. 571, 665 N.W. 2D. 305——————————12
STRICKLAND V. WASHINGTON(1984)
466 U.S. 668, 104 S. Ct. 2052——————————————12
STATE Ex. Rel. GOODCHILD V. BURKE (1965)
27 WIS. 2D. 244,133 N.W. 2D. 753———————————16-17
TERWILLIGER V. KOTKE (1983)
110 WIS. 2D. 86, 328 N.W. 2D 481———————————16
STATUES CITED §. 805.13, STATS.—————————————————————2,15
§. 809.30, STATS.——————————————————————2
§. 809.32, STATS.——————————————————————4
§. 901.03 (4) STATS.—————————————————————3
§. 904.03, STATS.——————————————————————4
§. 904.04, STATS.——————————————————————4
§. 939.05, STATS.-——————————————————————6
§. 940.01,STATS.——————————————————————7
STATEMENT OF ISSUES PRESENTED FOR REVIEW——————-1
STATEMENT ON ORAL ARGUMENT——————————————3
STATEMENT OF THE CASE—————————————-4
ARGUMENT——————————————7
The Trial Court erroneously viewed the holdings in Loop v. State, 2d. 694, 696 (1974) denying the Defendant's Postconviction Motion on 3/27/08 reasoning that the Defendant could have raised the instant issues on Direct Appeal, when the Defendant did not pursue a Direct Appeal————————————————7
Trial Counsel was prejudicially deficient in the pre-trial stage failing to investigate Co-Defendant Derrick Howard whom would have provided information under the Legitimate Tendency Test, that a third person could have committed the crime absent the requirement to establish guilt of third persons to the degree of certainty as a requisite to sustain a conviction in order for this type of evidence to be admitted to a jury————8
The Trial Court erroneously viewed §.904.03 and §.904.04(2)Stats. allowing state witness Thomas Avery under the rules of hearsay to testify at trial that the Defendant had self-inflicted a gun-shot wound showcasing a propensity to use firearms nexus to the commission of the predicated offense of 8/19/96————13
Defense Counsel's unfamiliarity with §.805.13(5) Stats, endorsed the trial court's erroneous view of said statute in its failure to re-instruct the jury causing the jury to reach a verdict based on evidence not receive
at trial—————————————————-——————————15
Trial Counsel's erroneous view of a Goodchild Hearing deprived the Defendant of his right to take the stand in order to make a record of his version of the facts and circumstances under which the Defendant's statement was given——————————————16
The Trial record Ascertains that juror Gretchen L. Wahl, no. 276, possessed subjective bias sentiments in voir dire based on interracial incident transpiring in 1983, wherein her brother -in-law's sister was killed by a firearm in a drive by shooting, admitting on the record a biasness affecting her impartiality at trial————————18
An unnamed juror provided incompetent responses on voir dire to material questions alerting the trial court after two (2) days of trial that she knew State witnesses, lodius Barker and Susan Foster showcasing subjective bias towards the Defendant—19
The Prosecutor went beyond the providence of reasoning of the evidence informing the jury in its argument that the Defendants had admitted that he had operated the vehicle utilized in the commission of the offense on 8/19/96 in the a.m., where such statement is not a matter of record————————————————21
Trial Counsel failed to place a proper objection on the record allowing Thomas Avery to inform the jury of the Defendant's alleged involvement in an armed robbery with Thomas Avery as a victim, prior to the incident of 8/19/96, which should've been a matter of a Motion in Limine—————————————————22
Trial Counsel failed to move for a mistrial when the prosecutor pursued an uninterrupted line of questioning, exposing the Defendant to the jury that he was in pre-trial custody___________________________24
CONCLUSION——————————————————————————26
CASES CITED
II
TABLE OF CONTENTS DESCRIPTION PAGE NO.
AFTER HOUR WELDING (1982)
108 WIS. 2D. 734, 324 N.W. 2D. 686—————————————21
ESTELLE V. WILLIAMS (1976)
425 U.S. 501, 96 S. Ct. 1691————————————————24-25
HARTUNG V. HARTUNG (1981)
102 WIS. 2D. 59, 306 N.W. 147———————-———————8
LACLAW V. STATE (1968)
41 WIS. 2D. 177, 163 N.W. 147———————————————17
LOOP V. STATE (1974)
69 WIS. 2D. 499, 222 N.W. 2D. 694—————————————1,7,8
MULKOUVICH V. STATE (1976)
73 WIS. 2D. 464, 243 N.W. 2D. 198———————————-——15
STATE V. CARTER (2002)
250 WIS. 2D. 851, 641 N.W. 2D. 517——————————-——18
STATE V. PENNY (1984)
120 WIS. 2D. 614, 357 N.W. 2D. 12—————————————-9
STATE V. EDELBURG (1986)
129 WIS. 2D. 394, 384, N.W. 2D. 724—————————————16
STATE V. FELTON (1983)
110 WIS. 2D. 485, 329 N.W. 2D. 161—————————————10-11
STATE V. HAYES (2004)
273 WIS. 2D. 1——————————————————————16,21
STATE V. HUTNIK (1968)
39 WIS. 2D. 754,159 N.W. 2D. 733———————————————13-14
STATE V. JACKSON (1997) 212 WIS. 2D. 203, 567 N.W. 2D. 920——————————————20
STATE V. JORGENSON (2008) 2008 WIS. 60)———————————————————————22
STATE V. MACHNER (1979)
92 WIS. 2D. 797——————————————————————11
STATE V. MESSELT (1994) 185 WIS. 2D. 254, 518 N.W. 2D. 232—————————————20
STATE V. NORWOOD (2005) 287 WIS. 2D. 679, 706 N.W. 2D. 683————————————15
STATE V. RICHARDSON (1969) 49 WIS. 2D. 75,170 N.W. 2D. 775——————21
CASES CITED STATE V. SPRAGGEN(1977)
77 WIS. 2D. 89, 252 N.W. 2D. 94————————————24
STATE V. SULLVIAN(1998)
216 WIS. 2D. 768. 576 N.W. 2D. 30——————————23
STATE V. THIELI2003)
264 WIS. 2D. 571, 665 N.W. 2D. 305——————————12
STRICKLAND V. WASHINGTON(1984)
466 U.S. 668, 104 S. Ct. 2052——————————————12
STATE Ex. Rel. GOODCHILD V. BURKE (1965)
27 WIS. 2D. 244,133 N.W. 2D. 753———————————16-17
TERWILLIGER V. KOTKE (1983)
110 WIS. 2D. 86, 328 N.W. 2D 481———————————16
STATUES CITED §. 805.13, STATS.—————————————————————2,15
§. 809.30, STATS.——————————————————————2
§. 809.32, STATS.——————————————————————4
§. 901.03 (4) STATS.—————————————————————3
§. 904.03, STATS.——————————————————————4
§. 904.04, STATS.——————————————————————4
§. 939.05, STATS.-——————————————————————6
§. 940.01,STATS.——————————————————————7
Monday
Statement of Case
STATEMENT OF THE CASE
ON 8/19/96 IN THE A.M, A SHOOTING WAS REPORTED ON 12TH AND GRAND AVE. IN RACINE COUNTY INVOLVING THE HOMICIDE OF DEZREZ PIERCE (A:139) RESPONDED TO BY LAW ENFORCEMENT, WHEREAS, LAW ENFORCEMENT COULD NOT DEPICT WHO THE SHOOTER FROM THE DRIVER'S SIDE OF THE VEHICLE WAS.
DERRICK HOWARD, CO-DEFENDANT IN CASE NO. 96-CF-938 WAS IDENTIFIED AS THE SHOOTER, EXITING FROM THE PASSENGER SIDE OF THE VEHICLE, WHEREAS, ON 1/15/2008 EXECUTED IN AFFIDAVIT (A;116) THAT HEAD OR LADELLE BOGAN (A:117) WAS FIRING A GUN FROM THE DRIVER'S SIDE OF THE VEHICLE, RATHER THAN THE CONVICTED APPELLANT, LORENZO JOHNSON (A:116) .
WHY DID DERRICK HOWARD WAIT TEN (10) YEARS LATER TO EXECUTE THIS AFFIDAVIT EXCULPATATING THE APPELLANT? DERRICK HOWARD INITIALLY ATTEMPTED TO TALK TO THE DEFENSE ATTORNEY, BUT THE APPELLANT'S ATTORNEY WOULD NOT RESPOND TO THE PHONE CALLS FROM THE COUNTY JAIL. THE APPELLANT ATTEMPTED TO PURSUE A DIRECT APPEAL, BUT IT WAS APPELLANT ATTORNEY’S DESIRE TO FILE A NO MERIT REPORT UNDER § 809.32, BUT APPELLANT COUNSEL WAS DISMISSED PROVIDING THE APPELLANT TO PURSUE A DIRECT APPEAL UNDER § 809.30, BUT WAS NEVER PURSUED ALLOWING THE DIRECT APPEAL TIME LIMITS TO ELAPSE, PROVIDING THE APPELLANT' TO PURSUE HIS ISSUES UNDER § 974.06, PURSUANT TO THE HOLDINGS OF LOOP V. STATE', 69 WIS . 2D. 499, 222 N.W. 2D. 694, 696, (1974), WHERE IN THE COURT HELD:
"ISSUES OF CONSTITUTIONAL DIMENSION CAN BE RAISED ON DIRECT APPEAL AND ALSO CAN BE RAISED ON 974.06 MOTION. MERELY BECAUSE A DIRECT APPEAL WAS NOT TAKEN DOES NOT MEAN THAT 974.06 MOTION CANNOT BE MADE LATER."
LADELLE BOGAN (A.K.A HEAD: A: 116: 117) TOLD THE POLICE THAT HE WAS IN FACT PRESENT AT THE TIME DEZREZ PIERCE WAS SHOT. (A:117) LADELLE BOGAN TOLD THE POLICE ON 11/1/96 THAT HE DID NOT SEE THE DRIVER OF THE VEHICLE NOR DID HE SEE HIM DRIVING, HE STATED THAT THE DRIVER HAD A MASK ON. (A:118)
CAN IT BE ASSUMED THAT THE DRIVER OF THE VEHICLE WHO HAD A MASK ON (A;118) BE LADELLE BOGAN (A;117) AS IDENTIFIED BY DERRICK HOWARD (A;116) WHO SHOT AND KILLED DEZREZ PIERCE, WRONGLY CONVICTING THE APPELLANT IN CASE NO. 96-CF-940?
THOMAS AVERY APPRISED THE POLICE THAT THE APPELLANT WAS THE DRIVER OF THE CAR (A:142, 143, 144, 145-146), BUT TESTIFIED AT THE APPELLANT'S TRIAL TO THE CONTRARY:
q.. DO YOU REMEMBER GIVING THAT TESTIMONY AT A HEARING A FEW MONTHS AFTER THE SHOOTING?
A: YES I DO. .
q: was that the truth?
a: but somebody. I didn't see his face, but people that was at the scene, they was like it was him. so like...
q: at the time you told him that the person who was driving the car was named. Reno. why did you SAY THAT?
A: BECAUSE PEOPLE THAT WAS AT THE SCENE THAT WAS ON THE OTHER SIDE OF THE STREET, THEY WAS SAYING IT WAS HIM.
Q: OKAY.
A: WILLIAMS AND ALL THEM. SO THAT'S WHAT I SAID.
Q: OKAY. BUT YOU NEVER SAW HIM?
A: NO.! " (EMPHASIS ADDED) (A:158: 11-18: 159:12-21)
UPON CROSS EXAMINATION THOMAS AVERY PERJURED HIMSELF UNDER OATH DENYING THAT HE TOLD POLICE WHO THE SHOOTER WAS. (A: 161: 16-18)
A: NO.! " (EMPHASIS ADDED) (A:158: 11-18: 159:12-21)
UPON CROSS EXAMINATION THOMAS AVERY PERJURED HIMSELF UNDER OATH DENYING THAT HE TOLD POLICE WHO THE SHOOTER WAS. (A: 161: 16-18)
THE ONLY REASON THAT THOMAS AVERY POINTED THE FINGER AT THE APPELLANT WAS BECAUSE HE HAD A PROBLEM WITH THE APPELLANT ON 8/17/96 (A:189: 1-5) THAT DERRICK HOWARD AND THE APPELLANT HAD ROBBED HIM (A\:192: 15-18), AND THERE WAS NO EVIDENCE OF A POLICE REPORT OF ANY ROBBERY NOR CORROBORATION OF THE ROBBERY. (A; 195: 13-15)
DURING JURY DELIBERATIONS THE JURORS WANTED THE POLICE INTERVIEWS INVOLVING THOMAS AVERY (A:142-146), BUT WEREN'T SENT BACK BECAUSE THEY WERE NOT ENTERED AND RECEIVED AS EXHIBITS (A;166), WHICH RESULTED IN A TAINTED CONVICTION IN CASE NO. 96-CF-940 BECAUSE THE CREDIBILITY OF THOMAS WAS IN QUESTION DEPRIVING THE JURORS OF DETERMINING THAT WHEN A WITNESS TESTIFIES TO MATERIALITY IN THE INSTANT CASE, THE JURY DESIRED AVAILABLE PROOF THAT THOMAS AVERY MADE STATEMENTS INCONSISTENT WITH HIS PRESENT TESTIMONY. THE SELF CONTRADICTION OF THOMAS AVERY'S TESTIMONY ACCORDING TO THE RECORD WAS THE THEORY THAT THOMAS AVERY'S PRESENT TESTIMONY WAS TRUE EXCULPATING THE APPELLANT AND THE FORMER STATEMENTS TO LAW ENFORCEMENT WAS FALSE. (A:142-146)
IN THE ABSENCE OF THE JURORS VIEWING THOMAS AVERY'S STATEMENTS TO LAW ENFORCEMENT (A:42-146), DEPRIVED THE JURORS FROM DETERMINING AVERY'S NOTION OF TALKING ONE WAY ON THE STAND AND ANOTHER WAY PREVIOUSLY, WHICH IS BLOWING HOT AND COLD, RAISING DOUBT AS TO THE TRUTH-FULNESS OF ALL-THOMAS AVERY'S STATEMENTS.
IN ADDITION, THE JURORS WANTED CHRIS COSEY, ANOTHER STATE WITNESSES TESTIMONY READ BACK (A:166: 10-11), BUT NEVER DID HEAR READ-BACK TESTIMONY BECAUSE THE CIRCUIT COURT FELT THAT READING BACK ALL THE REQUESTED TESTIMONY WOULD ALLOW THE JURY TO RETRY DURING DELIBERATIONS SIGNIFYING'THAT COSEY WAS PROVIDING PRIOR INCONSISTENT STATEMENTS; PROVIDED BY THE FACT THAT STATE WITNESS, TYRONE SMITH SCRIBED THAT KENNEDY BARBER NOR CHRISTOPHER COSEY WERE AT THE SCENE OF THE CRIME (A;138) SIGNIFICANT WITNESSES TO AID THE STATE IN CONVICTING THE DEFENDANT.
THE DEFENDANT WAS FOUND GUILTY OF VIOLATING § 940.01, RECEIVING A PED ELIGIBILITY BEYOND 2040, WHILE RECEIVING 5-9 YEARS OF SENTENCES OF RECKLESS ENDANGERING SAFETY IN THE FIRST DEGREE, CONSECUTIVE TO EACH OTHER, BUT CONCURRENT TO THE HOMICIDE CONVICTION.
A DIRECT APPEAL ENSUED; BUT, WAS NEVER PURSUED BECAUSE APPELLATE COUNSEL WANTED TO OPT FOR A NO MERIT REPORT, WHEREAS, THE DEFENDANT PROCEEDED PRO SE. BUT NEVER FILED ANY MOTIONS ON THE DIRECT APPEAL PROCESS, WHICH RESULTED IN AN EXHAUSTED DIRECT APPEAL DUE TO TIME CONSTAINTS.
THE APPELLANT FILED A MOTION UNDER § 974.06(3)(D) WHEREAS THE CIRCUIT COURT HELD AN EVIDENTIARY HEARING UNDER § 974.06(3) (C) (A:101) . THE COURT ON 2/12/09 DENIED THE DEFENDANT'S MOTION FOR REASONS STATED ON THE RECORD (A: lOO).
THE TRANSCRIPT OF THE 3/27/08-PC PROCEEDING WAS TRANSCRIBED
ON 6/23/09 (A:102-115), WHEREAS, THE STATE ARGUED THAT SINCE THE DEFENDANT ALLOWED HIS DIRECT APPEAL TO BE DISMISSED IN THE ABSENCE OF FILING MOTIONS, THAT THEIR POSITION WAS THAT THE DEFENDANT COULD NOT RAISE ISSUES UNDER, §974.06. (A:103-19-23)
THE TRIAL COURT CONCURRED WITH THE STATE THAT THE DEFENDANT ALLOWED HIS DIRECT APPEAL TO BE DISMISSED AND THE ISSUES COULD HAVE BEEN RAISED ON DIRECT AND THAT THE INSTANT ISSUES ON DIRECT REVIEW. (A:lll: 15-19)
HENCE THIS APPEAL ENSUES; AND, THE INSTANT ISSUES ARE COMPELLING WITH THE MAIN QUESTION REMAINING: WHO KILLED DEZREZ PIERCE ON 8/19/96 AS THE DRIVER OF THE CAR UTILIZED IN THE COMMISSION OF THE PREDICATED OFFENSE?
Statement on Oral Argument
THE APPELLANT DOES NOT REQUEST ORAL ARGUMENT NEITHER PUBLICATION, BUT RATHER, THE ISSUES INVOLVE NO MORE THAN THE APPLICATION OF WELL-SETTLED RULES TO A RECURRING FACT SITUATION AND THE ISSUES ARE TO BE DECIDED ON THE BASIS OF CONTROLLING PRECEDENT AND NO REASON APPEARS FOR QUESTIONING OR QUALIFYING THE PRECEDENT UNDER § 809.23(1)(B) 1. AND 3.
Statement of Issues
STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT II
APPEAL NO. 2008-AP-1950
______________________________________
STATE OF WISCONSIN,PLAINTIFF-RESPONDENT,
L.C. CASE NO. 2Q08-AP-1950
LORENZO JOHNSON,DEFENDANT-APPELLANT.
ON APPEAL FROM THE CIRCUIT COURT FOR RACINE COUNTY, THE HONORABLE CHARLES CONSTANTINE, PRESIDING
__________________________________
BRIEF-IN-CHIEF OF THE DEFENDANT-APPELLATE
_________________________________________
STATEMENT OF ISSUES PRESENTED FOR REVIEW
COURT OF APPEALS
DISTRICT II
APPEAL NO. 2008-AP-1950
______________________________________
STATE OF WISCONSIN,PLAINTIFF-RESPONDENT,
L.C. CASE NO. 2Q08-AP-1950
LORENZO JOHNSON,DEFENDANT-APPELLANT.
ON APPEAL FROM THE CIRCUIT COURT FOR RACINE COUNTY, THE HONORABLE CHARLES CONSTANTINE, PRESIDING
__________________________________
BRIEF-IN-CHIEF OF THE DEFENDANT-APPELLATE
_________________________________________
STATEMENT OF ISSUES PRESENTED FOR REVIEW
ISSUE ONE:
DID THE TRIAL COURT ERRONEOUSLY VIEW THE HOLDINGS IN STATE V. LOOP, 222 N.W. 2D. 694, 696 (1974)DENYING THE DEFENDANT'S ON 3/27/08 REASONING THAT INSTANT POST CONVICTION MOTION THE DEFENDANT COULD'VE ISSUES ON DIRECT APPEAL, WHEN RAISED THE DEFENDANT DID NOT PURSUE A DIRECT APPEAL?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD HAVE BEEN RAISED AND THAT YOU BE BARRED UNDER THAT.(SEE APPENDIX AT 111:15-19, HEREINAFTER, (A: 111 15-19) .
ISSUE TWO:
ISSUE TWO:
DID THE TRIAL COURT ERRONEOUSLY VIEW THE FACT THAT TRIAL COUNSEL WAS PREJUDICIALLY DEFICIENT- IN THE PRE-TRIAL STAGE FAILING TO INVESTIGATE CO-DEFENDANT, DERRICK HOWARD WHO WOULD'VE PROVIDED INFORMATION UNDER THE LEGITIMATE TENDENCY TEST THAT A' THIRD PERSON COULD'VE COMMITTED THE CRIME OF 8/19/96 ABSENT THE REQUIREMENT OF ESTABLISHING GUILT OF THIRD PERSONS TO THE DEGREE OF CERTAINTY AS A REQUISITE TO SUSTAIN A CONVICTION IN ORDER FOR THIS TYPE OF EVIDENCE TO BE ADMITTED TO THE JURY?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE BEEN RAISED AND THAT YOU BE BARRED UNDER THAT.(A: 111: 15-19)
ISSUE THREE:
ISSUE THREE:
DID THE TRIAL COURT ERRONEOUSLY VIEW § 904.03 AND § 904.04(2), ALLOWING STATE KEY WITNESS, THOMAS AVERY UNDER THE RULES OF HEARSAY TO TESTIFY AT TRIAL THAT THE DEFENDANT HAD SELF-INFLICTED A GUN SHOT WOUND SHOWCASING A PROPENSITY TO USE FIREARMS NEXUSED TO THE COMMISSION OF THE PREDICATED OFFENSE OF 8/19/96?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE BEEN RAISED AND THAT YOU BE BARRED UNDER THAT.(A: 111: 15-19)
ISSUE FOUR:
ISSUE FOUR:
DID THE TRIAL COURT ERRONEOUSLY VIEW DEFENSE COUNSEL'S UNFAMILIARITY WITH § 805.13(5) ENDORSING THE TRIAL COURT'S VIEW OF SAID STATUTE AT TRIAL IN ITS FAILURE TO RE-INSTRUCT THE JURY CAUSING THE JURY TO REACH A VERDICT BASED ON EVIDENCE NOT RECEIVED AT TRIAL?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE BEEN RAISED AND THAT YOU BE BARRED UNDER THAT.' (A: 111: 15-19)
ISSUE FIVE:
ISSUE FIVE:
DID THE TRIAL COURT ERRONEOUSLY VIEW TRIAL COUNSEL'S UNFAMILIARITY OF A GOODCHILD HEARING DEPRIVING THE DEFENDANT OF HIS RIGHT TO TAKE THE STAND' IN ORDER TO MAKE A RECORD OF HIS VERSION OF THE FACTS AND CIRCUMSTANCES UNDER WHICH THE STATEMENT WAS GIVEN?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE BEEN- RAISED AND THAT YOU BE BARRED UNDER THAT.(A:111: 15-19)
ISSUE SIX:
ISSUE SIX:
DID THE TRIAL COURT ERRONEOUSLY VIEW JUROR GRETCHEN L. WAHL NO. 276, POSSESSING* SUBJECTIVE BIAS SENTIMENTS IN VOIR .DIRE BASED ON AN INTERRACIAL INCIDENT TRANSPIRING IN 1983, WHEREIN HER BROTHER-IN-LAW'S SISTER WAS KILLED BY A FIREARM IN A DRIVE-BY SHOOTING, ADMITTING ON THE RECORD HER PARTIALITY AT TRIAL?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE BEEN RAISED AND THAT YOU BE BARRED UNDER THAT.
ISSUE SEVEN:
ISSUE SEVEN:
DID THE TRIAL COURT ERRONEOUSLY VIEW THAT AN UNNAMED JUROR PROVIDED INCOMPETENT RESPONSES ON VOIR DIRE ALERTING THE TRIAL COURT AFTER TWO DAYS OF TRIAL THAT SHE KNEW STATE WITNESSES, IODIUS BARKER AND SUSAN FOSTER SHOWING SUBJECTIVE BIAS AGAINST THE DEFENDANT?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE • BEEN RAISED AND THAT YOU BE BARRED UNDER THAT.'(A: 111: 15-19)
ISSUE EIGHT: DID THE TRIAL COURT ERRONEOUSLY VIEW THAT THE PROSECUTOR WENT BEYOND THE PROVIDENCE OF REASONING OF THE EVIDENCE INFORMING THE JURY IN ITS ARGUMENT THAT THE DEFENDANT HAD ADMITTED THAT HE HAD OPERATED THE VEHICLE UTILIZED IN THE COMMISSION OF THE OF-FENSE ON 8/19/96 IN THE A.M., WHERE SUCH STATEMENT IS NOT A MATTER OF RECORD?
ANSWER:
ISSUE EIGHT: DID THE TRIAL COURT ERRONEOUSLY VIEW THAT THE PROSECUTOR WENT BEYOND THE PROVIDENCE OF REASONING OF THE EVIDENCE INFORMING THE JURY IN ITS ARGUMENT THAT THE DEFENDANT HAD ADMITTED THAT HE HAD OPERATED THE VEHICLE UTILIZED IN THE COMMISSION OF THE OF-FENSE ON 8/19/96 IN THE A.M., WHERE SUCH STATEMENT IS NOT A MATTER OF RECORD?
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE BEEN RAISED AND THAT YOU BE BARRED UNDER THAT.(A: 111: 15-19)
ISSUE NINE;
ISSUE NINE;
DID THE TRIAL COURT ERRONEOUSLY VIEW TRIAL COUNSEL FAILURE TO PLACE A PROPER OBJECTION ON THE RECORD ALLOWING THOMAS AVERY TO INFORM THE JURY OF THE DEFENDANT'S INVOLVEMENT IN AN ARMED ROBBERY WITH THOMAS AVERY AS A VICTIM AND NOT REPORTED TO LAW ENFORCEMENT PRIOR TO THE INCIDENT OF 8/19/96, WHICH SHOULD'VE BEEN A MATTER IN A MOTION OF LIMINE?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE BEEN RAISED AND THAT YOU BE BARRED -UNDER THAT.(A: 111: 15-19)
ISSUE TEN:
ISSUE TEN:
DID THE TRIAL COURT ERRONEOUSLY VIEW TRIAL COUNSEL'S FAILURE TO MOVE FOR A MISTRIAL WHEN THE PROSECUTOR PURSUED AN UNINTERRUPTED LINE OF QUESTIONING EXPOSING THE ' DEFENDANT TO THE JURY THAT -HE WAS IN PRE-TRIAL CUSTODY?
ANSWER:
ANSWER:
THE TRIAL COURT STATED ON THE RECORD 'YOU LOST YOUR RIGHT TO DIRECT APPEAL AND THE ISSUES COULD'VE BEEN RAISED AND THAT YOU BE BARRED UNDER THAT.' (A: 111: 15-19)
Sunday
Argument I
THE TRIAL COURT ERRONEOUSLY VIEWED THE HOLDINGS IN LOOPY V. STATE, 222 N.W.2D. 694, 696 (1974) DENYING THE DEFENDANT'S POSTCONVICTION MOTION ON 3/27/2008 REASONING. THAT THE DEFENDANT COULD'VE RAISED THE INSTANT ON DIRECT APPEAL, WHEN THE DEFENDANT DID NOT PURSUE A DIRECT APPEAL.
THERE'S NO CASE LAW, PUBLISHED OR UNPUBLISHED, PROCEDURALLY BARRING A DEFENDANT FROM RAISING ISSUES OF CONSTITUTIONAL DIMENSIONS IF A DIRECT APPEAL WASN'T PURSUED RAISING ISSUES OF CONSTITUTIONAL DIMENSIONS IRRESPECTIVE OF THE STAGES OF AN INITIAL APPEAL.
THE TRIAL COURT STATED ON THE RECORD, "I AM GOING TO INDICATE THAT IT DOES SEEM TO ME BECAUSE YOU LOST YOUR RIGHT TO DIRECT APPEAL. BASICALLY THAT WAS YOUR DECISION AND THAT THE ISSUES COULD HAVE BEEN RAISED THAT YOU BE BARRED UNDER THAT." (A:lll: 15-19)
THE DEFENDANT HAD DISMISSED APPELLATE COUNSEL PREMISED ON HIS DECISION TO FILE A NO MERIT REPORT, WHEREAS, THE DEFENDANT HAD REQUESTED SEVERAL EXTENSIONS IN ORDER TO ABROGATE DEFAULT ON HIS DIRECT APPEAL DUE TO ITS TIME CONSTRAINTS, BUT WAS NOT LITERALLY COMPETENT TO FILE PLEADING OF ISSUES OF CONSTITUTIONAL NATURES ON A PRO SE BASIS, EVIDENCING THE ABILITY TO FILE PLEADINGS ON COLLATERAL REVIEW, SINCE NO DIRECT APPEAL WAS TAKEN.
FOR AS THE COURT HELD IN LOOP, SUPRA, THAT, "... ISSUES OF CONSTITUTIONAL DIMENSION CAN BE RAISED ON DIRECT APPEAL AND ALSO CAN BE RAISED ON 974.06 MOTION. MERELY BECAUSE A DIRECT APPEAL WAS NOT TAKEN DOES NOT MEAN THAT A 974.06 MOTION CANNOT BE MADE LATER." ID. AT 696. (EMPHASIS ADDED)
THE TRIAL COURT'S ERRONEOUS VIEW OF LOOP, SUPRA, IS NOT A DISCRETIONARY DETERMINATION BASED UPON FACTS APPEARING IN THE RECORD AND RELIANCE UPON THE APPROPRIATE AND APPLICABLE LAW DID NOT EVIDENCE A PURPOSE OF ACHIEVING A REASONED AND REASONABLE DETERMINATION, ABROGATING AN UNAUTHORIZED BAR UNDER COLLATERAL REVIEW. SEE HARTUNG V. HARTUNG, 102 WIS. 2D. 59, 306 N.W.2D. 16 (1981).
Argument II
Argument II
TRIAL COUNSEL WAS PREJUDICALLY DEFICIENT IN THE PRE-TRIAL STAGE FAILING TO INVESTIGATE CO-DEFENDANT, DERRICK HOWARD WHOM WOULD HAVE PROVIDED INFORMATION UNDER THE LEGITIMATE TENDENCY TEST THAT A THIRD PERSON COULD'VE COMMITTED THE CRIME ABSENT THE REQUIREMENT TO ESTABLISH GUILT OF THIRD PERSONS TO THE DEGREE OF CERTAINTY AS A REQUISITE TO SUSTAIN A CONVICTION IN ORDER FOR THIS TYPE OF EVIDENCE TO BE ADMITTED TO A JURY.
THE ATTORNEY'S DUTY TO INVESTIGATE IS AN ESSENTIAL ELEMENT TO THE ADVERSIAL TESTING PROCESS, WHICH WILL GENERALLY NOT FUNCTION PROPERLY UNLESS DEFENSE COUNSEL HAS DONE SOME INVESTIGATION INTO THE STATE'S CASE AND INTO VARIOUS DEFENSE STRATEGIES. WHETHER AN ATTORNEY RELIES PRIMARILY ON FORMAL OR INFORMAL TECHNIQUES TO PREPARE FOR A TRIAL, THE OBJECTIVE IS THE SAME: GATHERING A LARGE QUANTITY OF EVIDENCE THAT IS ADMISSIBLE AND CREDIBLE FOR TRIAL. AND IF THE ATTORNEY ACHIEVES THAT PRE-TRIAL OBJECTIVE, THE ATTORNEY'S CLIENT SHOULD GAIN A FAVORABLE TRIAL VERDICT. BUT THE TRIAL VERDICT IS LARGELY DRIVEN BY THE QUANTITY AND QUALITY OF ADMISSIBLE EVIDENCE UNEARTHED DURING FORMAL AND INFORMAL PRE-TRIAL DISCOVERIES, WHICH BY THE RECORD DEFENSE COUNSEL WAS PREJUDICIALLY DEFICENT UNDER THE SIXTH IN THE INSTANT CASE.
PRIOR TO THE APPELLANT'S TRIAL AND PRIOR TO THE CO-DEFENDANT'S ENTRY OF A GUILTY PLEA IN CASE NO. 96-CF-938, THE CO-DEFENDANT ATTEMPTED SEVERAL TIMES TO CONTACT THE APPELLANT'S ATTORNEY TO PROVIDE A THIRD PERSON PERPETRATOR WHO COULD HAVE COMMITTED THE CRIME OF ,8/19/96, UNDER THE LEGITIMATE TENDENCY TEST IN THE ABSENCE OF THE DEFENDANT BEING REQUIRED TO ESTABLISH THE GUILT OF THE THIRD PERSON TO THE DEGREE OF CERTAINTY AS A REQUISITE TO SUSTAIN A CONVICTION IN ORDER FOR THIS TYPE OF EVIDENCE TO BE ADMITTED. SEE STATE V. DENNY, 120 WIS. 2D. 614, 357 N.W. 2D. 12 (1984).
THE LEGITIMATE TENDENCY TEST UNDER DENNY, SUPRA, ASKS WHETHER THE PROFFERED EVIDENCE IS SO REMOTE IN TIME, PLACE OR CIRCUMSTANCES THAT A DIRECT CONNECTION CANNOT BE MADE BETWEEN THE THIRD PERSON AND THE CRIME. AS LONG AS THE MOTIVE, AND THE OPPORTUNITY HAS BEEN SHOWN AND AS LONG AS THERE'S SOME EVIDENCE TO DIRECTLY CONNECT A THIRD PERSON TO THE CRIME CHARGED ON 8/19/ 96, WHICH IS NOT REMOTE IN TIME, PLACE OR CIRCUMSTANCES, THE EVIDENCE 'SHOULD BE ADMISSIBLE.
THE CO-DEFENDANT, DERRICK HOWARD ON 1/15/2008 EXCUTED AN AFFIDAVIT TO THE FOLLOWING:
IN THE MORNING OF 8/19/96, ME AND HEAD (LADELLE BOGAN (A:117-118), PULLED UP TO 12TH AND GRAND. SOME GUYS BEGIN TO SHOOT IN OUR DIRECTION AFTER BEING FIRED UPON FIRST I SEEN HEAD (A:117-118) FIRE BACK WITH A GUN IN HIS LEFT HAND FROM THE DRIVER'S WINDOW. I GOT OUT OF THE CAR AND BEGIN TO RUN IN THE OPPOSITE DIRECTION. A GUY BEGAN TO SHOOT AT ME AND THAT'S WHEN I BEGAN TO RETURN FIRE. AFTER SEEING MR. JOHNSON'S LAWYER IN RACINE COUNTY JAIL, I TRIED TO TALK TO HIM ABOUT HEAD (LADELLE BOGAN: A:117-118) WAS THE ONE WITH ME WHOSE A FRIEND OF 'MY BROTHER. HEAD (LADELLE BOGAN: A: 117-118,) WAS GOING TO SAY HE WAS AT THE MOVIES ON THE DAY AND THE MORNING OF 8/19/96 AS HIS ALIBI. I AND MY BROTHER . ' WAS READY TO PROVIDE THIS INFORMATION TO MR. JOHNSON'S LAWYER. (A:116) (EMPHASIS ADDED)
THE QUESTION IN THIS CASE IS WHETHER THERE'S INEFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO INFORM HIMSELF OF A DEFENSE PROVIDED BY DENNY, SUPRA, AND WHERE HE FAILED TO INVESTIGATE THE FACTS IN RESPECT TO A DENNY-DEFENSE AS A POTENTIAL DEFENSE, WHEN THE RECORD INDICATES THAT HAD THESE FAILURES NOT OCCURRED, THE TRIAL JUDGE, AFTER A PROPER EVALUATUION OF THE RECORD, COULD'VE BEEN IMPELLED TO INSTRUCT THE JURY IN RESPECT TO A DENNY DEFENSE, AND THE JURY COULD'VE RETURNED A VERDICT BASED ON THE DENNY DEFENSE. STATE V. FELTON, 110 WIS. 2D. 485, 503, 329 N.W. 2D. 161 (1983).
TRIAL COUNSEL WAS PREJUDICALLY DEFICIENT IN THE PRE-TRIAL STAGE FAILING TO INVESTIGATE CO-DEFENDANT, DERRICK HOWARD WHOM WOULD HAVE PROVIDED INFORMATION UNDER THE LEGITIMATE TENDENCY TEST THAT A THIRD PERSON COULD'VE COMMITTED THE CRIME ABSENT THE REQUIREMENT TO ESTABLISH GUILT OF THIRD PERSONS TO THE DEGREE OF CERTAINTY AS A REQUISITE TO SUSTAIN A CONVICTION IN ORDER FOR THIS TYPE OF EVIDENCE TO BE ADMITTED TO A JURY.
THE ATTORNEY'S DUTY TO INVESTIGATE IS AN ESSENTIAL ELEMENT TO THE ADVERSIAL TESTING PROCESS, WHICH WILL GENERALLY NOT FUNCTION PROPERLY UNLESS DEFENSE COUNSEL HAS DONE SOME INVESTIGATION INTO THE STATE'S CASE AND INTO VARIOUS DEFENSE STRATEGIES. WHETHER AN ATTORNEY RELIES PRIMARILY ON FORMAL OR INFORMAL TECHNIQUES TO PREPARE FOR A TRIAL, THE OBJECTIVE IS THE SAME: GATHERING A LARGE QUANTITY OF EVIDENCE THAT IS ADMISSIBLE AND CREDIBLE FOR TRIAL. AND IF THE ATTORNEY ACHIEVES THAT PRE-TRIAL OBJECTIVE, THE ATTORNEY'S CLIENT SHOULD GAIN A FAVORABLE TRIAL VERDICT. BUT THE TRIAL VERDICT IS LARGELY DRIVEN BY THE QUANTITY AND QUALITY OF ADMISSIBLE EVIDENCE UNEARTHED DURING FORMAL AND INFORMAL PRE-TRIAL DISCOVERIES, WHICH BY THE RECORD DEFENSE COUNSEL WAS PREJUDICIALLY DEFICENT UNDER THE SIXTH IN THE INSTANT CASE.
PRIOR TO THE APPELLANT'S TRIAL AND PRIOR TO THE CO-DEFENDANT'S ENTRY OF A GUILTY PLEA IN CASE NO. 96-CF-938, THE CO-DEFENDANT ATTEMPTED SEVERAL TIMES TO CONTACT THE APPELLANT'S ATTORNEY TO PROVIDE A THIRD PERSON PERPETRATOR WHO COULD HAVE COMMITTED THE CRIME OF ,8/19/96, UNDER THE LEGITIMATE TENDENCY TEST IN THE ABSENCE OF THE DEFENDANT BEING REQUIRED TO ESTABLISH THE GUILT OF THE THIRD PERSON TO THE DEGREE OF CERTAINTY AS A REQUISITE TO SUSTAIN A CONVICTION IN ORDER FOR THIS TYPE OF EVIDENCE TO BE ADMITTED. SEE STATE V. DENNY, 120 WIS. 2D. 614, 357 N.W. 2D. 12 (1984).
THE LEGITIMATE TENDENCY TEST UNDER DENNY, SUPRA, ASKS WHETHER THE PROFFERED EVIDENCE IS SO REMOTE IN TIME, PLACE OR CIRCUMSTANCES THAT A DIRECT CONNECTION CANNOT BE MADE BETWEEN THE THIRD PERSON AND THE CRIME. AS LONG AS THE MOTIVE, AND THE OPPORTUNITY HAS BEEN SHOWN AND AS LONG AS THERE'S SOME EVIDENCE TO DIRECTLY CONNECT A THIRD PERSON TO THE CRIME CHARGED ON 8/19/ 96, WHICH IS NOT REMOTE IN TIME, PLACE OR CIRCUMSTANCES, THE EVIDENCE 'SHOULD BE ADMISSIBLE.
THE CO-DEFENDANT, DERRICK HOWARD ON 1/15/2008 EXCUTED AN AFFIDAVIT TO THE FOLLOWING:
IN THE MORNING OF 8/19/96, ME AND HEAD (LADELLE BOGAN (A:117-118), PULLED UP TO 12TH AND GRAND. SOME GUYS BEGIN TO SHOOT IN OUR DIRECTION AFTER BEING FIRED UPON FIRST I SEEN HEAD (A:117-118) FIRE BACK WITH A GUN IN HIS LEFT HAND FROM THE DRIVER'S WINDOW. I GOT OUT OF THE CAR AND BEGIN TO RUN IN THE OPPOSITE DIRECTION. A GUY BEGAN TO SHOOT AT ME AND THAT'S WHEN I BEGAN TO RETURN FIRE. AFTER SEEING MR. JOHNSON'S LAWYER IN RACINE COUNTY JAIL, I TRIED TO TALK TO HIM ABOUT HEAD (LADELLE BOGAN: A:117-118) WAS THE ONE WITH ME WHOSE A FRIEND OF 'MY BROTHER. HEAD (LADELLE BOGAN: A: 117-118,) WAS GOING TO SAY HE WAS AT THE MOVIES ON THE DAY AND THE MORNING OF 8/19/96 AS HIS ALIBI. I AND MY BROTHER . ' WAS READY TO PROVIDE THIS INFORMATION TO MR. JOHNSON'S LAWYER. (A:116) (EMPHASIS ADDED)
THE DENNY LEGITIMATE TENDENCY TEST APPLIES TO THE DEFENDANT'S TRIAL; AND, NOT TO THE AFFIDAVIT OF THE APPELLANT'S CO-DEFENDANT ON 1/15/2008
ON 2/4/08/ THE CO-DEFENDANT PROVIDED CONSISTENT INFORMATION TO DR. KENNETH H. SMAIL, PHD. ABPQ (A:122), IN THE FOLLOWING MANNER:
"FURTHER HE SAID HE WANTED TO TESTIFY ON BEHALF OF MR. JOHNSON, NOT AGAINST, AS HIS OBSERVATIONS WAS THAT MR. JOHNSON WAS NOT PRESENT WHEN HIS OFFENSE OCCURRED." (A:121) (EMPHASIS ADDED)
LADELLE BOGAN STATED THAT HE WAS IN FACT AT THE SCENE OF THE CRIME AND ' THE REASON THAT HE "COULD NOT SEE THE DRIVER OF THE CAR (A:118) IS BECAUSE HE WAS THE DRIVER OF THE CAR, RATHER THAN THE APPELLANT. (A:116) .
THE CO-DEFENDANT DID NOT WANT TO TESTIFY UNDER THE CONDITIONS IN HIS OWN CASE OR AT THE CASE IN CASE NO. 96-CF-940 BECAUSE HIS ATTORNEY ADVISED HIM NOT BECAUSE ANY FURTHER INFORMATION HE GAVE WOULD POSSIBLY ENHANCE HIS SENTENCE IN HIS OWN CASE. (A:123-128: 133:134-137: 8-9)
THE QUESTION IN THIS CASE IS WHETHER THERE'S INEFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO INFORM HIMSELF OF A DEFENSE PROVIDED BY DENNY, SUPRA, AND WHERE HE FAILED TO INVESTIGATE THE FACTS IN RESPECT TO A DENNY-DEFENSE AS A POTENTIAL DEFENSE, WHEN THE RECORD INDICATES THAT HAD THESE FAILURES NOT OCCURRED, THE TRIAL JUDGE, AFTER A PROPER EVALUATUION OF THE RECORD, COULD'VE BEEN IMPELLED TO INSTRUCT THE JURY IN RESPECT TO A DENNY DEFENSE, AND THE JURY COULD'VE RETURNED A VERDICT BASED ON THE DENNY DEFENSE. STATE V. FELTON, 110 WIS. 2D. 485, 503, 329 N.W. 2D. 161 (1983).
THOMAS AVERY, A STATE KEY WITNESS FOR THE STATE TOLD LAW ENFORCEMENT THAT THE DEFENDANT WAS THE DRIVER OF THE CAR UTILIZED IN THE COMMISSION OF THE OFFENSE ON 8/19/96, AS A RESGESTAE WITNESS (A:142-146), BUT DURING THE TRIAL HE ADMITTED THAT HE HAD LIED TO THE POLICE AND THAT HE HAD ACTUALLY HEARD THROUGH OTHER PEOPLE AS HEARSAY WITHIN HEARSAY. (A;147-157: 158:11-18: 159:1-11: 160:12-21). THE ONLY REASON THAT AVERY THOMAS POINTED A FINGER AT THE DEFENDANT IS: ALLEGED OF A PROBLEM, A COUPLE DAYS PRIOR TO THE INCIDENT OF 8/19/96, CONSTITUTING UNSPECIFIED RATIONAL FOR HIS PREVARICATION TO THE POLICE INVOLVING THE DEFENDANT AS THE DRIVER OF THE CAR ON 8/19/96. (A;189;2-5) .
IF THE TRIAL COURT WOULD'VE PERMITTED THE DEFENDANT TO CONDUCT A MACHNER HEARING ,STATE V. MACHNER, 92 WIS. 2D. 797, 805-806 (1979) ON 3/3.1/08 ,RATHER THAN BARRING THE DEFENDANT BECAUSE HE DID NOT PURSUE A DIRECT APPEAL (A: 111:15-19), DEFENSE COUNSEL WOULD'VE HAD TO ANSWER TO HIS TRIAL STRATEGIES AS TO WHY HE FAILED TO PURSUE THE DENNY DOCTRINE IN THE CASE AT HAND.
THE COURT HELD IN STRICKLAND V. WASHINGTON, 466 U.S 668, 104 S.CT. 2052 (1984) THAT THE BENCHMARK FOR JUDGING ANY CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL MUST BE WHETHER COUNSEL'S CONDUCT SO UNDERMINDED THE PROPER FUNCTIONING OF THE ADVERSARIAL PROCESS THAT THE TRIAL IN THE CASE CAN'T BE RELIED ON AS HAVING PRODUCED A JUST RESULT, BECAUSE DEFENSE COUNSEL HAS A DUTY TO MAKE REASONABLE INVESTIGATIONS, AND TO MAKE A REASONABLE DECISION IN RESPECT TO THE DENNY DEFENSE, WHICH THE RECORD REFLECTS THAT A DENNY DEFENSE WAS NOT A STRATEGIC DEFENSE OR CHOICE IN THE CASE AT HAND. ID.
IN SUM, THE COURT HELD IN STATE V. THIEL, 264 WIS. 2D. 571, 665 N.W. 2D. 305 (2003), THAT IN A FELONY CASE WHEN THE CLIENT FACES SIGNIFICANT PRISON TIME, IT FALLS BELOW THE OBJECTIVE STANDARD OF REASONABLENESS IN THE FAILURE OF AN ATTORNEY TO INVESTIGATE ALL AVENUES OF DISCOVERY THAT MAY HAVE THE POTENTIAL TO EDUCE.INFORMATION THAT'S EITHER BENEFICIAL OR DAMAGING TO THE CLIENT'S CASE, AND WOULD PROVIDE CRITICAL INFORMATION IN RESPECT TO A DENNY DEFENSE, AND INSIGHT TO OTHER FACETS OF THE CASE THAT DESERVE A MORE THOROUGH INVESTIGATION. ID.
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FOOTNOTE 1: IT SHOULD BE NOTED THAT THE RACINE POLICE DEPT.' LABORATORY REPORT ON 9/5/96, COMPARED LATENT FINGER PRINTS OF JOHNSON TO THE ' GUNS UTILIZED IN THE COMMISSION' OF THE OFFENSE AND 'NO MATCHES NOTED,' (A:129) SIGNIFYING EXCULPATATING EVIDENCE THAT DEFENSE COUNSEL DID NOT USE DURING THE TRIAL IN CASE NO. 96-CF-938 WHICH THE TRIAL RECORD WILL SUPPORT. IT WAS ALSO TESTIFIED TO BY A FORENSIC EXPERT THAT THERE WERE NO IDENTIFIABLE FINGERPRINTS ON THE WEAPONS UTILIZED IN THE COMMISSION OF THE OFFENSE. (A:130-131. )
FOOTNOTE 2: TYRONE SMITH, ANOTHER STATE KEY WITNESS FOR THE STATE SCRIBED A HALOGRAPHIC STATING STATE WITNESSES, KENNEDY BARBER NOR CHISTOPHER COSEY WERE NOT PRESENT WITH SMITH WHEN THE INCIDENT TOOK PLACE ON 8/19/96/ DATED: 11/28/2007. (A;138) WHEREAS, ON 8/19/96, HE TOLD POLICE THAT BARBER AND COSEY WERE PRESENT WITH HIM ON 8/19/96. (A:139) BARBER AND COSEY HAD TESTIFIED AT THE DEFENDANT'S TRIAL THAT THEY SAW JOHNSON AS THE DRIVER OF THE CAR ON 8/19/96. SMITH ALSO TOLD POLICE THAT HE DID NOT SEE THE DRIVER OF THE CAR (A:141).
Friday
Argument III
THE TRIAL COURT ERRONEOUSLY VIEWED §904.03 AND §904.04(2), ALLOWING STATE WITNESS, THOMAS AVERY UNDER HEARSAY TO TESTIFY AT TRIAL THAT THE DEFENDANT HAD SELF-INFLICTED A GUNSHOT WOUND SHOWCASING A PROPENSITY TO USE FIREARMS NEXUSED TO THE COMMISSION OF THE PREDICATED OFFENSE OF 8/19/1996.
THE COURT HELD IN STATE V. HUTNIK, 39 WIS. 2D. 754, 159 N.W. 2D. 733 (6/28/1968), THAT IN THE MAKING OF THE DETERMINATION OF THE ADMISSIBILITY OF OTHER EVENTS OR OCCURRENCES THAT MAY SHOW INTENT, THE QUESTION IS ONE OF REMOTENESS AND NOT OF CHRONOLOGY EVIDENCE OF OFFENSES COMMITTED PREVIOUS TO THE CRIME UNDER PROSECUTION MAY BE ADMITTED AS IN THE CASE OF PRIOR OFFENSES, IF NOT TOO REMOTE. IN PROOF OF CRIMINAL INTENT, THE CONDUCT OF THE DEFENDANT ON OTHER OCCASIONS CLOSELY CONNECTED IN POINT OF TIME AND PLAN MAY BE RELEVANT TO THROW LIGHT ON THE DEFENDANT 'S MOTIVES AND INTENTIONS WHILE DOING THE ACT COMPLAINED OF. THE INTENTION WITH WHICH A PARTCULAR ACT IS DONE OFTEN CONSTITUTES THE BURDEN OF INQUIRY, AND TO PROVE THE INTENT IT BECOMES NECESSARY TO EXTEND THE EXAMINATION BEYOND THE PARTICULAR TRANSACTION WHEN THE ACCUSED IS UPON TRIAL. ID. FOR THE PURPOSE OF PROVING INTENT, NOT OF PROVING 'THE ACT ITSELF. IT'S OFTEN PERMISSIBLE TO SHOW OTHER CRIMINAL TRANSACTIONS OF THE SAME SORT SPRINGING FROM THE MENTAL CONDITIONS. ID. (EMPHASIS ADDED)
THOMAS AVERY VOLUNTEERED INFORMATION THAT THE DEFENDANT HAD SELF-INFLICTED A GUN SHOT WOUND SOME MONTHS PRIOR TO THE 8/19/96 INCIDENT. FOLLOWING P.O. HECK WAS ALLOWED TO TESTIFY THAT THE DEFENDANT HAD SHOT HIMSELF IN FEB. OR MARCH OF 1996. (A:164: 8-23)
DEFENSE COUNSEL HAD ARGUED THAT IT WAS IRRELEVANT INFORMATION THAT THE DEFENDANT HAD GUNS OR FIRED GUNS IN THE PAST. (A:162; 6-11) THE STATE OPPOSED DEFENSE COUNSEL'S MOTION, BECAUSE THOMAS AVERY HAD BASICALLY RECANTED HIS IDENTIFICATION OF THE DEFENDANT BEING THE DRIVER OF THE CAR. (A:162: 17-19)
THE COURT RULED THAT IT WAS ISSUE OF IDENTIFICATION UNDER §904.04 (2) REASONING THAT THE JURY NEEDED THAT RELEVANT INFORMATION TO MAKE IT REASONABLE WHILE DENYING DEFENSE COUNSEL'S MOTION. (A:163: 7-18)
The trial court erroneously concluded that the information that Thomas Avery provided to law enforcement in respect to the defendant self-inflicting a gun shot wound does not go to identification, because thomas avery knew who the defendant was because he had had a problem with the defendant allegedly a couple days' prior to the incident. (a:189: 1-5) The trial court erroneously viewed §904. 03, wherein the court is to find that such evidence sustains probative value and is not outweighed by its prejudicial affects before the jury.
The Hutnik Court/ Supra, reasoned that when a court considers evidence of other occurrences to show criminal transactions of the same sort springing from like mental conditions, it's to consider the undue consumption of time, if it creates a substantial danger of undue prejudice or of confusing the issues or of misleading the jury or to unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered. id. at 754.
The trial court's decision to allow evidence of the defend-ant SELF-INFLICTING A GUNSHOT WOUND SHOWED AN ALLEGED PROPENSITY TO FIRE GUNS CREATING UNDUE PREJUDICE, WHILE MISLEADING THE JURY AND WAS A SURPRISE TO DEFENSE COUNSEL WHO HAD NOT REASONABLE GROUND TO ANTICIPATE THAT SUCH EVIDENCE WOULD BE OFFERED PREMISED ON THE FACT THAT THOMAS AVERY HAD PHYSICALLY VIEWED THE DEFENDANT TWO (2) DAYS BEFORE THE INCIDENT OF 8/19/96 (A:189: 1-5) , SHOWCASING THAT THOMAS AVERY PHYSICALLY KNEW WHO THE DEFENDANT WAS ABROGATING THE IDENTIFICATION RULING .ID.
SINCE THE JURY WAS ALLOWED TO HEAR INFORMATION THAT THE DEFENDANT HAD SELF-INFLICTED A GUNSHOT WOUND, IT CAN NOT BE DEEMED THAT THE DEFENDANT HAD BEEN FAIRLY TRIED BEFORE THE JURY, WHEN THE MINDS OF THE JURORS HAVE BEEN PREJUDICED BY THE ACCUSED FORMER MISCONDUCT, WHICH DIVERTED AND PERVERTED THE JURY FROM A DELIBERATE AND IMPARTIAL CONSIDERATION OF THE QUESTION WHETHER THE REAL EVIDENTIARY FACTS FASTEN GUILT UPON THE DEFENDANT BEYOND A REASONABLE DOUBT. SEE MULKOVICH Y. STATE/ 73 WIS. 2D. 464, 243 N.W. 2D. 198 (6/30/1976).
FOOTNOTE 3: THE RECORD SHOWS THAT IDENTIFICATION BY THOMAS AVERY WAS NOT AN ISSUE FOR THOMAS AVERY, PER SB (A:189: 1-5)/-AN ERRONEOUS ARGUMENT BY THE STATE, AND AN ERRONEOUS DECISION BY THE TRIAL COURT. FOR IT'S WELL SETTLED CASE LAW THAT OTHER ACTS IS RELEVANT IF A REASONABLE JURY COULD FIND BY THE PREPONDERANCE OR WEIGHT OF THE EVIDENCE THAT THE DEFENDANT COMMITTED THE ACT ON TRIAL. WHETHER THE JURY FINDS THE DEFENDANT COMMITTED THE OTHER ACT BY THE PREPONDERANCE OF THE EVIDENCE, THEN IT BECOMES A QUESTION OF LAW THAT THIS COURT DECIDES WITHOUT WEIGHING CREDIBILITY OR DETERMINING WHETHER THE STATE PROVED THE DEFENDANT COMMITTED THE ACT ON TRIAL. THE TRIAL COURT ERROR OF ADMITTING EVIDENCE OF THE DEFENDANT SELF-INFLICTING A GUNSHOT WOUND DOES EFFECT THE SUBSTANTIAL RIGHTS OF THE APPELLANT SEEKING REVERSAL IN THE INSTANT CASE. SEE STATE V. NORWOOD, 287 WIS. 2D. 679, 706 N.W. 2D. 683 (2005).
Wednesday
Argument IV and V
Argument IV
DEFENSE COUNSEL'S UNFAMILIARITY WITH §805. 13 (5) ENDORSED THE TRIAL COURT'S ERRONEOUS VIEW OF SAID STATUTE IN ITS FAILURE TO INSTRUCT THE JURY TO REACH A VERDICT BASED ON EVIDENCE RECEIVED AT TRIAL.
DURING JURY DELIBERATIONS, THE JURORS SUBMITTED A NOTE TO THE DESIRING THAT THEY WANTED P.O. HECKEL'S INTERVIEW-THOMAS AVERY AND INV. MICH'S INTERVIEW WITH THOMAS AVERY . (A:166: 2-7)1 THE JUROR'S ALSO DESIRED TESTIMONY READ BACK IN RESPECT TO MR. AND MRS. ROGERS, ALONG WITH CHRIS COSEY'S TESTIMONY (A:166: 9-11).
THE POLICE REPORTS WERE NOT ENTERED AND RECEIVED AS EXHIBITS, (A:166). THE TRIAL COURT REFUSED TO HAVE THE TESTIMONIES MR. AND MRS. ROGERS AND CHRIS COSEY READ BACK DUE TO 'THE LENGTH OF TIME TO DO SO.
OBVIOUSLY THE JURORS DOUBTED THE CREDIBILITY OF: AVERY, COSEY AND MR. AND MRS. ROGERS WHICH RENDERED A PATENTLY INCONSISTENT VERDICT. A VERDICT THAT'S OBTAINED THAT IS PATENTLY INCONSISTENT, THEN A TRIAL MUST BE REORDERED BECAUSE THE JURY DID NOT REACH A VERDICT IN CONFORMITY WITH WI-JI-CRIMINAL: ____ 100, 103 AND 140. SEE TERWILLIGER V. KOTKE , 110 WIS. 2D . 86 / 328 N.W. 2D. 481 (1983) .
IF CREDIBILITY OF WITNESSES ARE AT ISSUE AND ARE NOT ABLE TO RECEIVE THE DOCUMENTATION TO RENDER AN IMPARTIAL VERDICT UNDER THE SIXTH AMENDMENT, THE TRIAL COURT IS TO ADMONISH THE JURY TO CONSIDER EVIDENCE ONLY RECEIVED AT TRIAL AND THE LAW AS GIVEN AND FROM THESE ALONE REACH A VERDICT. THE COURT IS TO INSTRUCT THE JURY TO DECIDE THE CASE SOLELY ON THE EVIDENCE OFFERED AND RECEIVED AT TRIAL.
DEFENSE COUNSEL FAILED TO MOVE FOR A MISTRIAL PRIOR TO THE RETURN OF THE VERDICT. SEE STATE V. EDELBURG , 129 WIS. 2D. 394, 400/ 384 N.W. 2D. 724, 727 (1986). WHEREAS, A WAIVED ARGUMENT CAN BE RAISED BY WAY OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM. STATE V. HAYES, 273 WIS. 2D. 1, 54 [114] (2004).
DEFENSE COUNSEL COULD HAVE MOTIONED TO IMPEACH THE VERDICT, BUT HIS NEGLECT TO DO SO RELIEVED THE STATE OF MEETING THIER BURDEN OF PROOF UNDER THE FIFTH AMENDMENT.
ARGUMENT V
TRIAL COUNSEL ERRONEOUSLY VIEWED THE GOOD-CHILD HEARING DEPRIVING THE DEFENDANT OF HIS RIGHT TO TAKE THE STAND IN ORDER TO MAKE A RECORD OF HIS VERSION OF THE FACTS AND CIRCUMSTANCES UNDER WHICH THE DEFENDANT'S STATEMENT WAS GIVEN.
A GOODCHILD HEARING (A:167: 15-25) WAS HELD ON 6/23/98, WHEREIN, P.O. STEVE MICH TESTIFIED UNDER MIRANDA THE PROCEDURE HOW HE READ THE DEFENDANT HIS RIGHTS AND HOW THE DEFENDANT PROVIDED HIS VERSION OF HIS ACTIVITIES ON 8/19/96. (A:168-174)
THE TRIAL COURT ASKED OF DEFENSE COUNSEL IF HE WANTED TO CALL ANY WITNESSES, WHEREAS, HE REPLIED, "NO!" (A:174: 21-23) THE TRIAL COURT MADE A FINDING THAT THE STATEMENTS WERE MADE UNDER MIRANDA, AND STATED THEY'RE ADMISSIBLE, IN THE ABSENCE OF FINDING THE STATEMENTS ADMISSIBLE UNDER GOODCHILD. STATE EX, REL. GOODCHILD V. BURKE/ 27 WIS. 2D 244, 133 N.W. 2D. 753 (1965).
THE GOODCHILD COURT HELD THAT "AT A HEARING ON ISSUES, THE TRIAL JUDGE SITTING ALONE SHALL MAKE A DETERMINATION UPON A PROPER RECORD UPON THE ISSUE OF VOLUNTARINESS. THE STATE SHALL HAVE THE BURDEN OF PROVING VOLUNTARINESS BEYOND A REASONABLE DOUBT. AT THE HEARING THE DEFENDANT MAY TAKE THE STAND AND TESTIFY FOR THE LIMITED PURPOSE OF MAKING A RECORD OF HIS VERSION AND CIRCUMSTANCES UNDER WHICH THE STATEMENT WAS MADE BY DOING SO, THE DEFENDANT DOES NOT WAIVE HIS RIGHT TO TAKE THE STAND IN HIS OWN DEFENSE ON THE TRIAL IN CHIEF. NEITHER DOES HE WAIVE ANY OTHER RIGHTS STEMMING FROM HIS CHOICE NOT TO TESTIFY. " ID. AT 763-64 [10-12].
DEFENSE COUNSEL WAIVED THE DEFENDANT'S RIGHT TO TESTIFY UNDER GOODCHILD (A:174: 21-23), BUT MADE OF RECORD, "CONTESTING THE CONTENTS OF THE STATEMENTS." (175: 2-3) OBVIOUSLY, DEFENSE COUNSEL KNEW BEFORE HAND THAT THE VOLUNTARINESS OF THE DEFENDANT'S STATEMENT WAS IN QUESTION. 'THEN THE QUESTION REMAINS: HOW CAN THE TRIAL JUDGE MAKE A DETERMINATION UPON AN IMPROPER RECORD UPON THE ISSUE OF VOLUNTARINESS OF THE DEFENDANT'S STATEMENT BECAUSE THE STATE USED THE DEFENDANT '.S STATEMENT FALSELY IN ITS ITS CLOSING ARGUMENT TO THE JURY? (SEE A:184: 4-8)
THE FAILURE TO HOLD A PROPER GOODCHILD HEARING ON A QUESTION OF VOLUNTARINESS IS PREJUDICIAL TO THE RIGHTS OF THE DEFENDANT TO HAVE A FAIR TRIAL. SEE LACtAW V. STATE, 41 WIS. 2D. 177, 163 N.W. 2D. 147, 151 (1968).
FOOTNOTE 4: THE STATE IN ITS CLOSING ARGUMENT TOLD THE JURY THAT HE HAD BEEN OPERATING THE CAR AS SOON AS THE MORNING OF THE SHOOTING (A:184: 4-6), WHEREAS, THE DEFENDANT APPRISED INV. MICH ON 10/31/1996 THAT HE OPERATED OR DROVE THE CAR USED IN THE SHOOTING 'THE EVENING PRIOR TO THE SHOOTING.' (A:185) SHOWCASING THAT DEFENSE COUNSEL KNEW THAT THE STATEMENT OF THE DEFENDANT WAS INVOLUNTARY, THUS, RESULTING IN THE MINDS OF THE JURORS FROM THE STATE'S FALSE QUOTATION OF THE PRE-TRAIL RECORD (A:185) THAT THE DEFENADNT SUBSTANTIVELY WAS IN THE CAR THE MORNING OF THE SHOOTING ON 8/19/96.
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DEFENSE COUNSEL'S UNFAMILIARITY WITH §805. 13 (5) ENDORSED THE TRIAL COURT'S ERRONEOUS VIEW OF SAID STATUTE IN ITS FAILURE TO INSTRUCT THE JURY TO REACH A VERDICT BASED ON EVIDENCE RECEIVED AT TRIAL.
DURING JURY DELIBERATIONS, THE JURORS SUBMITTED A NOTE TO THE DESIRING THAT THEY WANTED P.O. HECKEL'S INTERVIEW-THOMAS AVERY AND INV. MICH'S INTERVIEW WITH THOMAS AVERY . (A:166: 2-7)1 THE JUROR'S ALSO DESIRED TESTIMONY READ BACK IN RESPECT TO MR. AND MRS. ROGERS, ALONG WITH CHRIS COSEY'S TESTIMONY (A:166: 9-11).
THE POLICE REPORTS WERE NOT ENTERED AND RECEIVED AS EXHIBITS, (A:166). THE TRIAL COURT REFUSED TO HAVE THE TESTIMONIES MR. AND MRS. ROGERS AND CHRIS COSEY READ BACK DUE TO 'THE LENGTH OF TIME TO DO SO.
OBVIOUSLY THE JURORS DOUBTED THE CREDIBILITY OF: AVERY, COSEY AND MR. AND MRS. ROGERS WHICH RENDERED A PATENTLY INCONSISTENT VERDICT. A VERDICT THAT'S OBTAINED THAT IS PATENTLY INCONSISTENT, THEN A TRIAL MUST BE REORDERED BECAUSE THE JURY DID NOT REACH A VERDICT IN CONFORMITY WITH WI-JI-CRIMINAL: ____ 100, 103 AND 140. SEE TERWILLIGER V. KOTKE , 110 WIS. 2D . 86 / 328 N.W. 2D. 481 (1983) .
IF CREDIBILITY OF WITNESSES ARE AT ISSUE AND ARE NOT ABLE TO RECEIVE THE DOCUMENTATION TO RENDER AN IMPARTIAL VERDICT UNDER THE SIXTH AMENDMENT, THE TRIAL COURT IS TO ADMONISH THE JURY TO CONSIDER EVIDENCE ONLY RECEIVED AT TRIAL AND THE LAW AS GIVEN AND FROM THESE ALONE REACH A VERDICT. THE COURT IS TO INSTRUCT THE JURY TO DECIDE THE CASE SOLELY ON THE EVIDENCE OFFERED AND RECEIVED AT TRIAL.
DEFENSE COUNSEL FAILED TO MOVE FOR A MISTRIAL PRIOR TO THE RETURN OF THE VERDICT. SEE STATE V. EDELBURG , 129 WIS. 2D. 394, 400/ 384 N.W. 2D. 724, 727 (1986). WHEREAS, A WAIVED ARGUMENT CAN BE RAISED BY WAY OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM. STATE V. HAYES, 273 WIS. 2D. 1, 54 [114] (2004).
DEFENSE COUNSEL COULD HAVE MOTIONED TO IMPEACH THE VERDICT, BUT HIS NEGLECT TO DO SO RELIEVED THE STATE OF MEETING THIER BURDEN OF PROOF UNDER THE FIFTH AMENDMENT.
ARGUMENT V
TRIAL COUNSEL ERRONEOUSLY VIEWED THE GOOD-CHILD HEARING DEPRIVING THE DEFENDANT OF HIS RIGHT TO TAKE THE STAND IN ORDER TO MAKE A RECORD OF HIS VERSION OF THE FACTS AND CIRCUMSTANCES UNDER WHICH THE DEFENDANT'S STATEMENT WAS GIVEN.
A GOODCHILD HEARING (A:167: 15-25) WAS HELD ON 6/23/98, WHEREIN, P.O. STEVE MICH TESTIFIED UNDER MIRANDA THE PROCEDURE HOW HE READ THE DEFENDANT HIS RIGHTS AND HOW THE DEFENDANT PROVIDED HIS VERSION OF HIS ACTIVITIES ON 8/19/96. (A:168-174)
THE TRIAL COURT ASKED OF DEFENSE COUNSEL IF HE WANTED TO CALL ANY WITNESSES, WHEREAS, HE REPLIED, "NO!" (A:174: 21-23) THE TRIAL COURT MADE A FINDING THAT THE STATEMENTS WERE MADE UNDER MIRANDA, AND STATED THEY'RE ADMISSIBLE, IN THE ABSENCE OF FINDING THE STATEMENTS ADMISSIBLE UNDER GOODCHILD. STATE EX, REL. GOODCHILD V. BURKE/ 27 WIS. 2D 244, 133 N.W. 2D. 753 (1965).
THE GOODCHILD COURT HELD THAT "AT A HEARING ON ISSUES, THE TRIAL JUDGE SITTING ALONE SHALL MAKE A DETERMINATION UPON A PROPER RECORD UPON THE ISSUE OF VOLUNTARINESS. THE STATE SHALL HAVE THE BURDEN OF PROVING VOLUNTARINESS BEYOND A REASONABLE DOUBT. AT THE HEARING THE DEFENDANT MAY TAKE THE STAND AND TESTIFY FOR THE LIMITED PURPOSE OF MAKING A RECORD OF HIS VERSION AND CIRCUMSTANCES UNDER WHICH THE STATEMENT WAS MADE BY DOING SO, THE DEFENDANT DOES NOT WAIVE HIS RIGHT TO TAKE THE STAND IN HIS OWN DEFENSE ON THE TRIAL IN CHIEF. NEITHER DOES HE WAIVE ANY OTHER RIGHTS STEMMING FROM HIS CHOICE NOT TO TESTIFY. " ID. AT 763-64 [10-12].
DEFENSE COUNSEL WAIVED THE DEFENDANT'S RIGHT TO TESTIFY UNDER GOODCHILD (A:174: 21-23), BUT MADE OF RECORD, "CONTESTING THE CONTENTS OF THE STATEMENTS." (175: 2-3) OBVIOUSLY, DEFENSE COUNSEL KNEW BEFORE HAND THAT THE VOLUNTARINESS OF THE DEFENDANT'S STATEMENT WAS IN QUESTION. 'THEN THE QUESTION REMAINS: HOW CAN THE TRIAL JUDGE MAKE A DETERMINATION UPON AN IMPROPER RECORD UPON THE ISSUE OF VOLUNTARINESS OF THE DEFENDANT'S STATEMENT BECAUSE THE STATE USED THE DEFENDANT '.S STATEMENT FALSELY IN ITS ITS CLOSING ARGUMENT TO THE JURY? (SEE A:184: 4-8)
THE FAILURE TO HOLD A PROPER GOODCHILD HEARING ON A QUESTION OF VOLUNTARINESS IS PREJUDICIAL TO THE RIGHTS OF THE DEFENDANT TO HAVE A FAIR TRIAL. SEE LACtAW V. STATE, 41 WIS. 2D. 177, 163 N.W. 2D. 147, 151 (1968).
FOOTNOTE 4: THE STATE IN ITS CLOSING ARGUMENT TOLD THE JURY THAT HE HAD BEEN OPERATING THE CAR AS SOON AS THE MORNING OF THE SHOOTING (A:184: 4-6), WHEREAS, THE DEFENDANT APPRISED INV. MICH ON 10/31/1996 THAT HE OPERATED OR DROVE THE CAR USED IN THE SHOOTING 'THE EVENING PRIOR TO THE SHOOTING.' (A:185) SHOWCASING THAT DEFENSE COUNSEL KNEW THAT THE STATEMENT OF THE DEFENDANT WAS INVOLUNTARY, THUS, RESULTING IN THE MINDS OF THE JURORS FROM THE STATE'S FALSE QUOTATION OF THE PRE-TRAIL RECORD (A:185) THAT THE DEFENADNT SUBSTANTIVELY WAS IN THE CAR THE MORNING OF THE SHOOTING ON 8/19/96.
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