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COURT OF APPEALS DECISION DATED AND RELEASED June 25, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2207-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CORNELIUS REED,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: GARY B. SCHLOSSTEIN, Reserve Judge. Reversed and cause remanded with
directions.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Cornelius Reed appeals from a judgment of
conviction for first-degree intentional homicide, party to a crime, and from
the trial court's order denying his postconviction motions. He argues that he received ineffective
assistance of counsel, that he is entitled to a new trial based on
newly-discovered evidence, and that the State failed to disclose exculpatory
evidence. We conclude that Reed is
entitled to a new trial based on newly discovered evidence and, therefore, we
reverse.
At about 5:30 p.m. on
December 28, 1992, Danielle Daniels and her fiancee, Dionysis Thomas, were
walking on the sidewalk near the intersection of North Avenue and Sherman
Boulevard in Milwaukee. A car drove
near them, stopped, and a man fired a “gauge” pump rifle from the rear
passenger window. Ms. Daniels was
struck by one shotgun blast and died.
At the jury trial, the
State presented two witnesses who identified Reed. Thomas testified that he saw Reed fire the shotgun. Anthony Lester, who was driving with his
wife in the same area, testified that he saw Reed and two others in the car
shortly before the shooting. Defense
counsel anticipated calling alibi and other defense witnesses and, in his
opening statement, told the jury “you're going to hear where Mr. Reed was at
the time of the shooting, and he wasn't in the automobile.” At the conclusion of the State's
presentation of its case-in‑chief, however, defense counsel considered
the State's identification witnesses and other evidence so weak that he called
no witnesses.
The record reveals the
bases for defense counsel's estimation of Thomas and Lester. Thomas's identification testimony was
compromised by numerous factors including:
(1) he initially did not give police Reed's name although he
subsequently acknowledged that he had known Reed for about two years prior to
the homicide; (2) he knew of no reason why Reed would have wanted to shoot
him; (3) after looking at photos at the police station for about an hour,[1]
he identified the photo of Gary Stoval as the gunman, although Stoval was in
Arkansas at the time of this murder;[2]
(4) he testified that he “didn't care at that time” about the results of
making a wrong identification; (5) after positively identifying Reed, he
still told a detective that he was “no longer positive” that Reed was the
gunman; (6) he testified at the preliminary hearing that he identified
Reed and his accomplices based on “three faces that I seen in my dream”[3];
and (7) he stated that Reed was “sticking his body halfway out the window
with a gauge,” although the undisputed police testimony established that the
window could open only eight and three-fourths inches.[4]
Lester's identification
testimony also was compromised by factors including: (1) he did not see the shooting; (2) although he
identified Reed as the person in the back seat, he also identified Dotson, one
of the accomplices, as the person riding in the back seat.
On December 9, 1993, the
jury found Reed guilty. Ronnie Watkins,
a Wisconsin prison inmate who had recently been sentenced to twenty-two years
for five armed robberies, read of the verdict in a newspaper and, on December
11, 1993, wrote the following letter to Reed:
Cornelius
You
don't know me yet but I know that you didn't have anything to do with that
drive-by that happen last Dec. This can
help you and me if you would just get you Attorney to contact me. I'm not doing this to help you but to help
the both of us. My Attorney ... know
about your case because I told him some parts about it earlier this month. So have your Attorney to apeal your case and
I'll come to court and testify in your favor.
This is no bull shit. I was
reading the news paper tonight and I saw what was happening. That's why I'm writing you this letter, so
go right on and get in touch with your Attorney or your family so they can
contact me, I know who did the drive-by because I was with them that night it
happe.
On December 29, 1993,
and on January 5, 1994, a private investigator, Robert D. Wilson, on behalf of
Reed's counsel, interviewed Watkins and prepared memoranda of the interviews,
both of which were received as evidence at the postconviction motion
hearing. According to Wilson's account
of the first interview:
WATKINS told the writer that on the night
of the Homicide, he and a girlfriend ... were at his sister's house.... He stated that his sister is SAHRA
FRANKLIN. He further states that
FRANKLIN is the mother of MAURICE TREMMEL TAYLOR.... Watkins further stated that he and [his girlfriend] were in bed
talking when his nephew TAYLOR, “JODY”, “FONTAINE”, and another B/M he did not
know came to his sisters house. He
could hear them talking and someone said to his nephew TAYLOR, “man, you really
fucked up, you shot a bitch.” WATKINS
stated that he heard MAURICE TAYLOR say something to the effect, “fuck it man,
I shot the damn bitch anyway.”
. .
. .
The writer asked WATKINS if MAURICE
TAYLOR told him directly that he had done the shooting and WATKINS stated that
he did not say those exact words, however, WATKINS heard TAYLOR talking about
the shooting with the other people at his sister's house the night of the
shooting.
WATKINS stated that the next day, TAYLOR
called him and told him that he had hidden the shot gun used in the shooting in
a small shed behind the house....
TAYLOR told WATKINS to get the shot gun and take it to HAMPTON's
apartment building and put it in the Cadillac that was parked in the rear. WATKINS told the writer that he and “JODY”
got the shot gun and took it over to HAMPTON'S house and put it in the back of
the car. The writer asked WATKINS to
describe the shot gun and he stated it was a pump with a pistol grip and sawed
off to about 30" in total length.
. .
. .
WATKINS
stated that he is not seeking any consideration for himself by telling what he
knows. He states that he feels bad
because REED is going to prison for something he had nothing to do with.
According
to Wilson's account of the second interview:
The writer ... asked WATKINS if he had
given any thought to the possible ramifications of his decision to come fourth
with the truth about who committed this Homicide. This, meaning that he would undoubtedly be questioned at length
by the Milwaukee Police Department, would probably be labeled as a “snitch” by
other inmates, and would face the anger of some family members.
WATKINS stated that he had given much
thought to these questions and had made a decision when he wrote the letter to
CORNELIUS REED that he was going to tell what he knew about his nephew, MAURICE
TAYLOR being the person responsible for the shooting death of Ms. DANIELS on
12/28/92.
WATKINS stated that this had bothered him
for some time.... [W]hen he read in the
newspaper that REED had been convicted of this Homicide, he stated that he
confided in a 2nd shift Sergeant known to him as “SMITTY”, Sgt. SMITH.
Sgt.
SMITH works at the DODGE COUNTY CORRECTIONAL FACILITY and told WATKINS that he
needed to tell what he knew concerning the Homicide because he could prevent
the killer from doing it again. WATKINS
stated that after his talk with Sgt. SMITH, he wrote the letter to REED, and
began this process.
The
report then stated that Wilson showed Watkins six photographs of various exterior
and interior views of a 1970 Cadillac.
The report continued:
RONNIE
WATKINS immediately recognized these photographs as the Cadillac he knew to
belong to a B/M he knows as “FOUNTAINE”.
He also stated that this is the same Cadillac that he and “JODY” placed
the shotgun into, wrapped in the white and gold towel. He further stated to the writer that he and
“JODY” had acted on MAURICE TAYLOR'S instructions to pick up the shotgun that
TAYLOR had used in the shooting, and had hidden under some tires, in the shed
behind SARAH FRANKLIN'S house ....
Watkins testified at the
postconviction motion hearing. On the
first day, unrepresented by counsel, he provided information corresponding to
that in the memoranda. When asked to
identify the gunman, however, he stated that Reed was not the gunman but he
declined to be more specific and, ultimately, invoked his Fifth Amendment
rights. The next day, however, after
conferring with his attorney, Watkins waived his Fifth Amendment rights,
identified Taylor as the gunman, and provided further information substantially
corresponding to that in the memoranda.
Based on the newly-discovered evidence from Watkins, Reed moved for a
new trial.
The trial court denied
his request for a new trial. In doing
so, however, the trial court stated that “the I.D. testimony [at the trial]
could have gone either way,” and that “[t]here was evidence from which I feel a
jury could fairly have supported a decision either way.” Indeed, the trial court further commented
that defense counsel “properly characterized” the State's case‑in‑chief
as “skimpy.”
A motion for a new trial
based on newly discovered evidence is addressed to the sound discretion of a
trial court and will not be reversed unless the trial court erroneously
exercised discretion. State v.
Kaster, 148 Wis.2d 789, 801, 436 N.W.2d 891, 896 (Ct. App. 1989). A new trial based on newly discovered
evidence should not be granted unless:
(1)
the evidence came to the moving party's knowledge after the trial; (2) the
moving party has not been negligent in seeking to discover it; (3) the evidence
is material to the issue; (4) the testimony is not merely cumulative to that
which was introduced at trial; and (5) it is reasonably probable that a new
trial will reach a different result.
Id. In this case, the trial court concluded, and
the State does not dispute, that the Watkins disclosure satisfied the first
four criteria. Thus, the only issue we
consider is whether the trial court erroneously exercised its discretion in
concluding that the newly discovered evidence would not make it “reasonably
probable that a new trial will reach a different result.”[5]
Motions for a new trial
based on newly discovered evidence are considered with great caution. Erickson v. Clifton, 265 Wis.
236, 239-240, 61 N.W.2d 329, 330-331 (1953).
We will affirm a trial court's discretionary decision if it had a
reasonable basis and was made in accordance with accepted legal standards and
the facts of record. See State v.
Jackson, 188 Wis.2d 187, 194, 525 N.W.2d 739, 742 (Ct. App. 1994). In this case, however, the trial court's
analysis was factually and legally flawed in three important respects.
First, the trial court
weighed the newly discovered evidence against unknown evidence not
presented at the trial:
I further note the existence of another
witness; to wit, Lucner Freeman available to both the State and the defense
whose position then and up to now appears to have consistently been that Mr.
Reed was the shooter and who was not called as to either party.
Freeman
had pled guilty as a result of his role as the driver of the car from which the
shotgun was fired. The State, however,
never called him to testify at Reed's trial.
Had he “consistently” identified Reed as the gunman, perhaps the State
would have done so, but the record simply offers no basis for reaching any
conclusion on this point. The
memorandum of the second interview with Watkins, however, offers additional
information countering the trial court's unexplained estimation of Freeman's
“position.” After Watkins identified a
photo of Freeman, investigator Wilson wrote:
FREEMAN admitted to Milwaukee Police that
he was in fact the driver of the car that the fatal shot was fired from that
killed Ms. DANIELS. He put REED in
the front seat, and “JODY” in the back seat.
WATKINS stated to the writer that FREEMAN is
currently at DODGE COUNTY CORRECTIONAL FACILITY, and that he has talked with
FREEMAN. The writer asked WATKINS if he
had told FREEMAN that he was making a statement concerning his knowledge of
what he knew about this Homicide. WATKINS
stated that he had told FREEMAN that he was and that he knew REED had nothing
to do with the shooting. WATKINS also
told the writer that FREEMAN told him that he (FREEMAN) had told the Police
that REED did the shooting because he knew REED had been identified in a
line-up so he just went along with that story.
WATKINS also stated that FREEMAN told him that he was not going to “turn
his brothers in for a Hook”, meaning Disciple.
(Emphasis
added.)
This, of course, does
not absolutely answer any questions about the roles of Taylor or Reed, or the
credibility of Watkins or Freeman. It
does, however, illustrate the substantial risk of erroneous analysis when a
trial court attempts to measure the impact of newly discovered evidence not
in relation to the trial evidence, but rather, in relation to possible
testimony from a potentially critical
witness who never testified to identify Reed as the gunman.
Second, the trial court
considered Watkins's testimony with an erroneous analysis of whether he was
acting against his penal interest. The
trial court stated:
I
look carefully at the statement against penal interest, the quality of Mr.
Watkins' statements because at first blush it obviously appears so. But then realistically we must look at the
fact that he was serving a lengthy prison term on five counts of armed robbery,
a very substantial and serious offense and serving a term that would no doubt[]
be beyond anything that he would be charged with at being a party after the
fact to this offense. So that if he
were charged—although it is possible he could get a consecutive—it is contrary
to our normal expectations or experience, and it would be probable that the
exposure would be no more than a consecutive not resu[l]ting in any significant
degree of penal risk insofar as he is conce[r]ned.
This
portion of the trial court's analysis is incorrect for several reasons. The trial court's assessment of whether
Watkins would receive a consecutive sentence is ambiguous, but seems to say
that a consecutive sentence would be “contrary to our normal expectations or
experience.” Nothing in the record
supports that notion and, indeed, this court's collective experience in
countless criminal cases would suggest that one who hides a murder weapon could
very well be sentenced to consecutive time for that conduct.
The trial court's
comment that any consecutive sentence would not result “in any significant
degree of penal risk” does not necessarily square with the law or, more
importantly, with Watkins's possible understanding of his potential
liability. Whether he could have been
prosecuted for being party to the crime of first‑degree intentional
homicide or merely with obstructing presents a close call—both factually and
legally.[6] We need not determine whether Watkins could
have been charged with being party to the homicide or merely with
obstructing. It is enough to recognize
that, in the absence of anything in the record to establish what Watkins might
have understood, he could very well have believed that he faced a potential
charge carrying an additional life sentence.
Additionally, Watkins
reasonably could have believed that he risked repercussions in the prison if
his cooperation would become known or if his testimony would lead to Taylor's
prosecution or conviction. Clearly, the
trial court's assessment of Watkins's penal interest was inconsistent with the
evidence presented at the hearing.
Third, the trial court
measured Watkins's statement not according to the substantial
corroboration in the trial evidence, but rather, once again, in relation to
speculation about unknown information from persons who never testified. The trial court stated:
I
note the multiple participants and the possible corroborators that were present
at the time of the act, but which all are unavailable and whose whereabouts are
presently unknown at this time to come forward and back up Mr. Watkins' story
and position and to assure the State or the criminal justice system in any way
that his statement is not just a mere fabrication created in a prison jail
structure where they are too unfortunately common.
The fact that he indicates he moved the gun to
a location where it appears that it was found is not corroboration insofar as
identity of a shooter. It is perhaps
some corroboration that he did move it at somebody's request for somebody who
may be the shooter, but that could have been done insofar as that particular
act is concerned for Mr. Reed as well as for anybody else.
Granted,
Watkins's account does not absolutely establish that Taylor was the one who
called him and told him to move the gun.
It is, however, the only account and can hardly be dismissed
simply because of speculation about unknown potential testimony from unknown
persons.
The trial court never
found Watkins incredible. At most, the
trial court pointed to factors that raised “questions as to credibility insofar
as Mr. Watkins is concerned.” Such
questions, of course, will be appropriate for a jury's consideration. It is undisputed, however, that numerous
powerful factors of record support Watkins's
credibility: (1) he did not know Reed and had no apparent
interest in helping him; (2) he knew the timing and circumstances of the
shooting; (3) he accurately identified the murder weapon and its location;
(4) his disclosures were contrary to his penal interests; (5) his
disclosures—implicating his own nephew—were also contrary to his apparent
familial interests; and (6) although he initially explored the possibility
that his cooperation could be personally beneficial, he ultimately implicated
his nephew and testified after he had been sentenced for armed robberies,
and after being advised of the self-incrimination he risked.
Balanced against this
newly discovered evidence from Watkins, the trial court substantially based its
denial of Reed's motion on speculation about Freeman, unknown witnesses, or
unknown evidence, on misinterpretations of Watkins's penal interests, and on
misunderstanding of whether there was corroboration for Watkin's information.
As the trial court
stated, the identification evidence at trial “could have gone either way,“[7]
and the State's case was “skimpy.” The
record of the trial and the record of the postconviction motion hearing
establish that the newly discovered evidence from Watkins renders a reasonable
probability that a different result would be reached in a new trial.[8] Accordingly, we reverse the judgment of
conviction and the order denying Reed's postconviction motions, and remand for
a new trial.
By the Court.—Judgment
and order reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Milwaukee Police Detective Steven Spingola testified that Thomas looked through drawers of hundreds of photos for about an hour; Thomas testified that he looked for ten or fifteen minutes and “picked the first one; any one.”
[2] Thomas testified at the trial that he did not truly believe Stoval was involved but that, “I picked out the photograph—any photograph just to get back home, because I was scared.”
[3] Thomas testified that the preliminary hearing court reporter might have recorded his statement inaccurately.
[4] Thomas also testified that the gunman was leaning out “[p]robably about to his chest part” and with both arms out of the window.
[5] The trial court stated that the newly-discovered evidence “has to be examined ... in view of the determination of whether or not [Watkins's] testimony would create a different result on retrial.” (Emphasis added.) We note that, with this articulation, the trial court began its oral decision in a way that may have held Reed to a higher standard than that of “reasonable probability.” That, in turn, may have had some impact on the trial court's analysis. At the conclusion of its decision, however, the trial court did state the correct standard.
[6]
See State v. Rundle, 176 Wis.2d 985, 500 N.W.2d 916
(1993). In Rundle, the
Wisconsin Supreme Court considered whether the evidence was sufficient to
support a father's conviction for aiding and abetting the mother's intentional
and reckless physical abuse of their daughter.
In a four to three decision, the supreme court explained:
It has been recognized that the
“accessory after the fact, by virtue of his involvement only after the felony
was completed, is not truly an accomplice in the felony. This category has thus remained distinct
from others, and today the accessory after the fact is not deemed a participant
in the felony but rather one who has obstructed justice....”
Id., 176 Wis.2d at 1006-1007, 500 N.W.2d at 925 (citation
omitted). The supreme court, however,
then went on to discuss whether the evidence supported “an inference beyond a
reasonable doubt that the defendant dressed his daughter inappropriately to
conceal her bruises from discovery by nursery school teachers,” id.,
176 Wis.2d at 1007-1008, 500 N.W.2d at 925, thus implying that if the evidence
had done so, this after-the-fact conduct could have constituted the aiding and
abetting of the crime.
Thus, the trial court's confusing comments about whether Watkins “would be charged with at being a party after the fact to this offense,” may have reflected understandable confusion in this area of law.