Statement of Issues

STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT II
APPEAL NO. 2008-AP-1950
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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
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BRIEF-IN-CHIEF OF THE DEFENDANT-APPELLATE
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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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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;

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:

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:

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:

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)