COURT OF APPEALS DECISION DATED AND FILED November 27, 2007 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Akilah Washawnd Crittenden, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 KESSLER, J. Akilah Washawnd Crittenden appeals his judgment of conviction resulting from a jury finding him guilty of three counts of felony bail jumping, in violation of Wis. Stat. § 946.49(1)(b) (2005-06)[1] and two counts of misdemeanor bail jumping, in violation of Wis. Stat. § 946.49(1)(a). Because we conclude that: (1) the trial court erred when it allowed the admission of Lawrence Gray’s testimony, where the State gave no notice prior to trial of Gray being called as a witness and without a finding of good cause; (2) the error was not harmless; and (3) the evidence was sufficient to support the verdict such that a re-trial would not violate Crittenden’s double jeopardy rights, we reverse and remand for a new trial.
BACKGROUND
¶2 On August 25, 2005, Crittenden was charged with three counts
of felony bail jumping and three counts of misdemeanor bail jumping, all
arising out of one incident on August 23, 2005.
Each of the bail jumping counts related to a pending case where Crittenden
was out on bail.[2]
In the criminal complaint, all six
counts related to City of
¶3 The conditions of bail associated with the five underlying
cases, as pertinent to this case, included Crittenden not committing a new
crime, and for Case No. 05CF3757, that Crittenden actually reside at the
residence he claimed, i.e., his grandmother’s house at
¶4 As to the no-contact order, at the bail hearing in Case No. 05CF3757, portions of which were made part of this record through testimony at the preliminary hearing and at trial, the court commissioner ordered that Crittenden have no contact with any members or “associates” of the Murda Mobb. When Crittenden’s attorney[4] objected to this condition on the ground of vagueness and asked that persons be specifically identified, the court commissioner responded that Crittenden could stay in jail until the State or/and the police put together a list of these individuals, or could determine for himself who the members and “associates” were. Crittenden’s attorney respectfully declined this invitation and the court commissioner then ordered:
there’s probably a gang composite somewhere in the Police Department which every one of [the Murda Mobb] are listed there by photo…. I will let [the no contact order] stand, you want to appeal it, maybe by then [the prosecutor] and Officer Lutz or Officer Newport can have a written no contact ordered drafted. We’ll do it that way.
This written order was never provided to the defendant as of the time of the trial in this matter.
¶5 A preliminary hearing was held on September 19 and 28, 2005. On September 19, Antione testified that the Murda Mobb was a rap (music) group, not a criminal gang; that he had terminated his membership in the Murda Mobb while he was in prison (he was released on supervision on August 9, 2005, because “[he] didn’t want to be associated with what they say the Murder – Murder Mob has become,” but what the Mob had become, Antione testified he had “really no knowledge”; and that the two other men present, Deon Cowser and Antonio Hibbler, were not associated with the Murda Mobb).
¶6
¶7 Crittenden’s counsel first objected to the State now
including Hibbler and Cowser as part of the support for the bail jumping
charges, arguing that Crittenden had not been given notice that the State would
be attempting to establish probable cause based on Crittenden’s contact with
anyone other than Antione. The court
commissioner overruled the objection, noting that it “do[es]n’t bind over based
on the criminal complaint, [it] bind[s] over based on what’s being testified
from now and the evidence of this [preliminary] hearing.” Crittenden’s counsel also objected to
¶8 On December 19, 2005, the State filed its witness list which
included only
¶9 On January 11, 2006, the first day of trial, the State moved the
trial court to allow
¶10 The trial court ruled that Newport could not testify as to “his
opinion as to who is or is not a member of the Murda Mobb gang [because] under
907.03, case law indicates that while opinion evidence may be … based upon
hearsay, the underlying hearsay data may not be admitted unless it is otherwise
admissible under a hearsay exception.”
The court concluded that
¶11 As to Gray, the trial court granted the State’s motion, ruling that:
Mr. Gray will be allowed to testify based upon things that he has foundation, personal knowledge of. Again, he may not base any opinions that he may have based upon hearsay statements of others. But looking at the prelim testimony, there was testimony to the fact that there was a party in October of 2000. Mr. Gray was present; that he was there for the conspiracy to distribute cocaine; that Ronald Crittenden [Crittenden’s uncle] was there; the – Decarlos Young [a founder of the Murda Mobb] was also there. And at this party, the individuals were chanting, “Murda, Murda.”
To the extent that he’s attended functions, he’s attended activities that he can describe how it is known that, or even his opinion that he was there to participate in activities of the Murda gang, that it’s appropriate for him to identify who was present for those events and what transpired, although not what was said specifically at those events.
Unless those statements are by the defendant, of course.
The remainder of the first day of trial was dedicated to voir dire and selection of the jury.
¶12 On January 12, 2005, prior to the jury hearing Gray’s testimony, trial counsel again objected to Gray, arguing that Crittenden had not received the required statutory notice. Additionally, trial counsel objected that all of the activities which the State had indicated it was going to have Gray testify to—drug transactions, shootings, weapons possession—were outside the scope of this bail jumping case, where the
only issue is whether or not the individuals, Mr. Hibbler and Cowser and Antione Crittenden were members of the Murda Mobb, and whether Mr. Akilah Crittenden associated with them [and] to introduce all this other evidence would definitely be unfairly prejudicial toward Mr. Crittenden and way outside the scope of anything the jury needs to consider to determine [whether] Mr. Crittenden’s guilt or … not.
¶13 The State never addressed Crittenden’s objection based on lack of statutory notice. The trial court ruled that Gray could testify regarding his own personal knowledge, without citing Wis. Stat. § 971.23 or finding that the State had good cause for not timely disclosing Gray. The trial court did not make Gray available to Crittenden to interview at any time prior to his testimony at trial.
¶14 Gray was called as the State’s first witness. He testified as follows: He was a
member of the 2-7 gang which was a part of the
¶15 As to Hibbler, Gray testified that while he had never seen Hibbler “directly do anything that tied to Murda Mobb,” he had observed Hibbler attending meetings of Murda Mobb members and affiliates. He has never seen Hibbler “throw down” the gang sign of Murda Mobb, but has seen Hibbler throw down the gang sign of the Clarke Street Most Wanted gang, which Gray testified is, from his personal knowledge, affiliated with the Murda Mobb.
¶16 As to Cowser, Gray testified that he has seen Cowser “throw down” the sign of the Murda Mobb in a manner which would show Cowser’s affiliation with the Mobb. Gray recognized this sign because he himself has “thrown down” the Murda Mobb gang sign in the same way to show his affiliation with the Mobb, even though he is not a member of the Murda Mobb, but is a member of the 2-7 gang.
¶17 On cross-examination, Gray admitted that he had not seen Cowser since February of 2005, and that he did not recall when he had last seen Hibbler, but that it was longer ago than 2005. Gray also admitted that in the photos shown to him by the State during his direct examination, he had incorrectly identified an individual present in the photo as Antione (Antione was not in the photo), and also noted on that same photo that Hibbler, while in the photo, was not “throwing” any gang signs.
¶18 Antione was called as the State’s second witness. He also testified under an agreement of
immunity. Antione testified that the Murda
Mobb had been created as a rap group and that before he left prison on August
9, 2005, he had determined that he was no longer going to be associated with it
as its reputation had changed during the four years he was in prison. Antione also testified that while he had been
a member of the Gangster Disciples, a
¶19 As to Hibbler and Cowser being present at his grandmother’s house on August 23, 2005, Antione testified that they were old friends of his and that they were there to see him and “catch up” since he had just gotten out of prison. Antione testified that neither of these men were members of the Murda Mobb and that he did not know if they were involved in any gangs. Antione stated that their seeing Crittenden that day was just a coincidence because Crittenden was at the house when Hibbler and Cowser came over to socialize with him. When asked about his own Murda Mobb tattoos, and the timing and reason for covering them up with new, filigree tattoos, Antione testified that he had planned on covering them while he was still in prison and had discussed doing so with his probation agent in August 2005. Antione testified that his getting the new tattoos shortly before the preliminary hearing in this case was only because it took until that time for him to have the funds to pay for the new tattoos.
¶20
Distribution of narcotics, both cocaine, marijuana, heroin, and now Ectasy [sic], homicide[,] recklessly endangering safety which is shootings, shootings of other people, kidnappings, armed robberies, intimidation of witnesses and victims and the public officials, firearm violations, both federal and State violations regarding firearms, the illegal purchases of them, the possession of felons of illegal firearms, the straw purchasing of non felons giving firearms to felons.
¶21
¶22
¶23
¶24
¶25
¶26 As to the testimony provided by Gray, Newport testified that the testimony given at this trial was consistent with statements Gray had made to him, except for the exact address of his house, which Gray testified was 1003 West Hadley, when in fact, Newport testified, the house number was actually 1007.
¶27
¶28
¶29 The defense presented no witnesses. The jury returned a verdict of guilty on all five counts. Crittenden moved for dismissal, directed verdict or judgment notwithstanding the verdict. The trial court denied the motions and sentenced Crittenden to sentences of six years’ imprisonment (three years’ initial confinement and three years’ extended supervision) on counts one through three, with counts one and two consecutive to each other and any other sentence, and count three concurrent with counts one and two, but consecutive to any other sentence. As to misdemeanor counts four and five, the court sentenced Crittenden to nine months in the House of Correction on each count, “concurrent with counts one through three and each other, but consecutive to any other sentence.” Crittenden appealed.
DISCUSSION
Standard of review
¶30 Our review in this case requires that we apply
¶31 We review evidentiary rulings with deference, limiting our analysis to whether the trial court
properly exercised its discretion based upon the facts and accepted legal
standards. State v. Mayo, 2007
WI 78, ¶31, __
I. Nondisclosure of potential witness
¶32
¶33 On the first day of trial, the State moved the trial court to
allow Gray to testify regarding gang activities in the City of
¶34 However, this does not end our inquiry. See
DeLao,
252
II. The trial court’s failure to find good
cause for the State’s failure to disclose Gray as a witness prior to trial was not
harmless error
¶35 In determining whether a constitutional error was harmless, our inquiry
is: “‘Is it clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error?’” Mayo, 734 N.W.2d 115, ¶47 (citing State
v. Harvey, 2002 WI 93, ¶46, 254
¶36 Gray was the first witness to testify at trial. Gray was allowed to testify regarding his
personal contacts with Crittenden, and regardless of whether Crittenden was present
with Crittenden’s brother Antione, and with Hibbler and Cowser. Gray testified that he had seen Antione
present during at least one drug transaction, which directly contradicted
Antione’s later testimony. The trial
court ruled that
¶37
¶38 Based upon our review of the record, we cannot conclude that
the trial court’s error was harmless.
The State has not proven “‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’” See Anderson, 291
¶39 Before we may reverse and order a new trial, however, we must
determine whether the evidence presented was sufficient to convict Crittenden. State v. Zimmerman, 2003 WI App 196,
¶23, 266
Sufficiency
of the evidence
¶40 Crittenden argues that the evidence presented was insufficient to prove the third element of the bail jumping charges, i.e., that he intentionally associated with members or affiliates of the Murda Mobb, because the State had not proven that Crittenden knew that Antione, Cowser or Hibbler were Murda Mobb members or affiliates on August 23, 2005. The Wisconsin Supreme Court recently noted, in discussing sufficiency of the evidence:
Evidence is insufficient to support a conviction only if the evidence, when viewed most favorably to the State, “is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.” As the court of appeals recently noted in State v. Searcy, 2006 WI App 8, 288 Wis. 2d 804, 709 N.W.2d 497, the defendant bears a heavy burden in attempting to convince a reviewing court to set aside a jury’s verdict on insufficiency of the evidence grounds.
Booker, 292
we must keep in mind that the credibility of the witnesses and the weight of the evidence is for the trier of fact, and we must adopt all reasonable inferences which support the jury’s verdict. The test is not whether this court is convinced of [the defendant]’s guilt beyond a reasonable doubt, but whether this court can conclude that the trier of fact could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true.
Searcy, 288
¶41 Crittenden was charged under Wis.
Stat. § 946.49(1)[9]
with felony and misdemeanor bail jumping.
Under § 946.49(1), the State is required to prove three
elements. See
¶42 Antione testified that: (1) he was with his brother Crittenden, Hibbler and Cowser in the backyard of his grandmother’s house on August 23, 2005; (2) the Murda Mobb was a rap group, not a gang; (3) he had once been a member of the Murda Mobb and both he and Crittenden had tattoos put on their forearms that stated Murda on the right arm and Mobb on the left arm; (4) while in prison he decided to no longer be a member of the Murda Mobb because of the reputation it now had (which reputation he really had no knowledge); (5) Hibbler and Cowser were not members of the Murda Mobb; (6) he did not believe any of the groups identified, such as the Clarke’s Most Wanted or the 2-7, were gangs because they were not organized with leaders and hierarchy like the Gangster Disciples gang of Chicago; (7) because he did not believe these groups were gangs he, therefore, did not believe associating with Hibbler and Cowser meant that he was associating with gang members; (8) because Hibbler and Cowser were not gang members and were not members of the Murda Mobb, it was okay to associate with them; (9) he never told his parole officer prior to Crittenden’s arrest that they were both living together at the grandmother’s address; and (10) getting his Murda Mobb tattoos covered just prior to his testifying at Crittenden’s preliminary hearing was a coincidence because he had planned to do this while in prison, but had to wait until he had the funds.
¶43
¶44 In a new trial, the jury will again have the ability to observe
and weigh the credibility of both Antione and
By the Court.—Judgment reversed and remanded.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] The felony counts related to Case Nos. 04CF4935, 04CF5454 and 05CF3757. The misdemeanor counts related to Case Nos. 04CM3707, 04CM5121 and 04CT8939.
[3] Prior to trial, the misdemeanor bail jumping count relating to the criminal traffic case, 04CT8939, was dismissed.
[4] Crittenden was originally represented in this case by a different attorney who was also representing him in some of the underlying cases. However, Crittenden asked for and received new counsel prior to this case going to trial.
[5] Carmen Price was identified as Crittenden’s girlfriend and her daycare was one address from which Crittenden was restricted as a condition of bail.
[6] Wisconsin Stat. § 971.23 provides, in pertinent part:
(1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
….
(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
[7]
(7) Continuing duty to disclose. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which are subject to discovery, inspection or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.
[8]
(7m) Sanctions for failure to comply. (a) The court shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.
(b) In addition to or in lieu of any sanction specified in par. (a), a court may, subject to sub. (3), advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (1) or (2m), or of any untimely disclosure of material or information required to be disclosed under sub. (1) or (2m).
[9] Wisconsin Stat. § 946.49, “Bail jumping,” states in
pertinent part:
(1) Whoever, having been released from custody under ch. 969 [“Bail and Other Conditions of Release”], intentionally fails to comply with the terms of his or her bond is:
(a) If the offense with which the person is charged is a misdemeanor, guilty of a Class A misdemeanor.
(b) If the offense with which the person is charged is a felony, guilty of a Class H felony.