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?
