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COURT OF APPEALS
DECISION
DATED AND FILED
September 25, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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 WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Deangelo Stokes,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: Mel
Flanagan and Karen E. Christenson,
Judges. Affirmed.
Before Higginbotham, P.J., Dykman and Lundsten, JJ.
¶1 PER CURIAM. Deangelo Stokes appeals a
judgment convicting him of first-degree intentional homicide. He also appeals an order denying
postconviction relief. Stokes was
convicted after a jury trial. The issue
is whether the trial court properly admitted into evidence the statement of an
unavailable witness. We affirm.
¶2 The complaint against Stokes alleged that Michael Bridges
drove Stokes, Willie McNeice, and Kinley Patterson to Kenneth Henley’s
residence to buy drugs. There, according
to the complaint, Stokes shot Henley to
death. The State based the allegations
in the complaint on a statement McNeice gave police. At the time the complaint was filed, police also
had a statement from Terrence Jackson in which Jackson
asserted that he, Shawn Simmons, and McNeice accompanied Stokes to Henley’s residence.
Jackson stated that he saw Stokes shoot Henley, and his description of the shooting was roughly
comparable to McNeice’s as presented in the complaint, except for who witnessed
it.
¶3 At Stokes’ first trial, Jackson
appeared as a witness for the State. Jackson testified, however, that the statement he gave
police was false, and that he was not present when Henley
was shot. Jackson added that most of the information he
received about the shooting came from another jail inmate. Counsel for Stokes did not cross-examine Jackson. The trial concluded with a mistrial, as the
jury was unable to reach a verdict.
¶4 At Stokes’ second trial, Jackson testified that he did not know
Stokes, and denied making the statement that police attributed to him. When questioned further, he refused to
answer, invoking his Fifth Amendment right.
The trial court declared a mistrial, concluding that Jackson’s
refusal to testify unfairly denied Stokes the right to cross-examine Jackson.
¶5 Before the third trial, the court ruled that the State could
not use Jackson’s testimony from the first
trial, but could introduce Jackson’s
statement. At the beginning of the third
trial, the State attempted to present Jackson as
a witness, but Jackson
invoked his Fifth Amendment privilege. The
State subsequently called a police officer who conveyed to the jury Jackson’s
statement about the shooting. The State
later introduced testimony from McNeice that Jackson
was not present at the shooting, and introduced a taped phone call Stokes made
from jail stating that Jackson was not at Henley’s. In
closing argument, the prosecutor acknowledged that Jackson
lied about witnessing the shooting, but contended that Jackson clearly had accurate information
about the shooting from someone who witnessed it and, in the prosecutor’s view,
that someone must have been Stokes.
Defense counsel argued that Jackson
denied talking to Stokes about the shooting, and must have received his information
from McNeice. The jury found Stokes
guilty, and the trial court entered a judgment of conviction.
¶6 In his postconviction motion, Stokes alleged that the trial
court erred by admitting Jackson’s statement
into evidence when Jackson
was unavailable to testify. The circuit court
denied the motion, concluding that even if it were error to admit Jackson’s statement, the
error was harmless given the other evidence against Stokes.
¶7 A defendant’s right to confrontation is violated if the trial
court receives into evidence out-of-court statements by someone who does not
testify at the trial, if those statements are “testimonial” and the defendant
has not had a prior opportunity to cross-examine the out-of-court declarant. See Crawford
v. Washington, 541 U.S.
36, 68-69 (2004). Testimonial statements
include statements made under circumstances that would lead an objective
witness to reasonably believe that the statement would be available for use at
a later trial. Id. at 51-52. Here, the State concedes that Jackson’s statement was
testimonial. Whether its admission
violated Stokes’ constitutional right to confrontation is a question of law
that we review independently. State
v. Weed, 2003 WI 85, ¶10, 263 Wis.
2d 434, 666 N.W.2d 485. We also independently
review whether admitting the statement was harmless. See State v.
Harris, 199 Wis.
2d 227, 256-63, 544 N.W.2d 545 (1996). The test for harmless error is whether the
beneficiary of the error proves beyond a reasonable doubt that it did not
contribute to the verdict. State
v. Harris, 2008 WI 15, ¶42, 307 Wis.
2d 555, 745 N.W.2d 397. An alternative
test for harmless error is whether it is clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error. Id.,
¶43.
¶8 We need not decide if admitting Jackson’s statement violated Stokes’ right to
confront witnesses, because admitting that statement was harmless. McNeice and Patterson testified that they saw
Stokes shoot Henley, and offered substantially
similar accounts of the shooting. Bridges
did not see the shooting, but corroborated McNeice’s and Patterson’s accounts
of the events leading up to and after the shooting. The prosecutor told the jury that it had to
determine whether McNeice, Patterson, and Bridges testified truthfully, and
advised the jury to acquit if it did not believe their accounts. Clearly, the jury found the three witnesses
credible.
¶9 Stokes agrees that the case depended on the credibility of the
State’s three main witnesses, and contends that Jackson’s statement was
important, not as evidence of Stokes’ guilt in its own right, but because it
significantly bolstered the credibility of the main witnesses by verifying
their identification of Stokes. But that
is true only if the jury believed that the source of Jackson’s information was someone besides McNeice
or Patterson, because only then would it have provided independent verification
of their accounts. The defense argued in
closing that McNeice was Jackson’s
source, and the prosecutor offered his theory that Stokes was the source.
There was, however, virtually no evidence
to resolve the question. Because it was
inconclusive as to whether the statement independently verified the
eyewitnesses’ identifications of Stokes, we cannot conclude that the Jackson statement
significantly bolstered the eyewitnesses’ credibility in the jury’s eyes. We therefore conclude that it is clear beyond
a reasonable doubt that the verdict would have been the same even had Jackson’s statement not
been admitted in evidence.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
(2005-06).