State v. Mario Mose Jones, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 29, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1366-CR Cir. Ct. No. 2014CF2995

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARIO MOSE JONES, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for
Milwaukee County: FREDERICK C. ROSA, Judge. Affirmed.

Before Kessler, Dugan and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1366-CR

¶1 PER CURIAM. Mario Jones appeals a judgment of conviction,
following a jury trial, of two counts of first-degree recklessly endangering safety,
and one count of being a felon in possession of a firearm. Jones also appeals the
orders denying his postconviction motions.

BACKGROUND

¶2 On July 11, 2014, Jones was charged with one count of first-degree
recklessly endangering safety and one count of being a felon in possession of a
firearm. An amended information added a second count of first-degree recklessly
endangering safety. According to the criminal complaint, on July 7, 2014, two
victims—T.B. and S.G.—were shot in the area of 38th and Brown Streets in
Milwaukee. T.B. did not identify Jones as the shooter, however; the complaint
states that S.G. told Milwaukee police that he was walking along North 38th Street
when a green Buick pulled up. A man S.G. knew as “Rio” exited the passenger
side of the vehicle and began firing shots, striking S.G. in the abdomen. The
complaint further states that S.G. later identified Jones in a photo array as the
shooter.

¶3 The matter proceeded to trial where multiple witnesses testified.
S.G. testified that he was shot on July 7, 2014, while walking down the street with
some friends. S.G. stated that he remembered speaking with Milwaukee Police
Detective Michael Slomczewski at a local hospital following the shooting, but told
the jury that he remembered little about their conversation. The State asked S.G.
numerous questions about S.G.’s conversation with Slomczewski, including:
(1) whether S.G. recalled telling Slomczewski that a green Buick pulled up as he
and his friends, including T.B., were walking; (2) whether S.G. recalled telling
Slomczewski that Rio exited the passenger side of the Buick and started asking

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about a missing gun; (3) whether S.G. recalled telling Slomczewski that Rio
followed S.G. and T.B. and began firing shots; (4) whether S.G. recalled telling
Slomczewski that he knew Rio from the neighborhood; and (5) whether S.G.
recalled telling Slomczewski that he would be able to identify Rio if shown a
picture. S.G. claimed not to remember any of those details of his conversation
with Slomczewski. S.G. further testified that he did not recall positively
identifying Jones in a photo array, claiming that if he did so, it must have been in
reaction to his pain. S.G. then denied that Jones shot him.

¶4 The State then called Slomczewski. Slomczewski testified that he
interviewed S.G. the day after the shooting. Slomczewski stated that he
interviewed S.G. at a local hospital, where S.G. seemed alert and communicated
freely and voluntarily. S.G. told Slomczewski that on the day of the shooting, he
and T.B. were at a corner store and went to a nearby yard to speak with an
acquaintance, Shamic. Shamic appeared frustrated and said that he was searching
for a gun. S.G. then saw Shamic on the phone “point[ing] at [S.G.] and [T.B.].”
A green Buick pulled up shortly thereafter. S.G. recognized the driver of the car
as “Twin,” and the passenger as Rio. Rio emerged from the car, asked where the
gun was, and then began shooting at S.G. and T.B. as they walked away. S.G. said
that he knew Rio from the neighborhood. Slomczewski told the jury that S.G.
identified Jones’s picture in a photo array conducted at the hospital. Slomczewski
identified Jones as the person S.G. identified as Rio.

¶5 Multiple sidebars were held during Slomczewski’s testimony.
Following Slomczewski’s testimony, and outside of the presence of the jury, the
trial court discussed the sidebars. As relevant to this appeal, the court stated:

The first objection concerned when Detective Slomczewski
started to describe what information was revealed to him by

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[S.G.]. The Defense made a hearsay objection. The State
argued that under 908.01(4)(a) that the statement was … a
prior inconsistent statement of the declarant. We did hear
[S.G.] state on the record when he testified that he either
didn’t recall making statements or that he did not make
those statements and so the court believed that those
statements made to the detective were properly admissible
under the basis cited by the State.

¶6 T.B. testified, telling the jury that on the day of the shooting, he was
“kicking it” with his “brother” S.G. on the corner of 38th and Brown Streets and
that S.G. was “arguing with some guys.” T.B. stated that he heard gunshots and
was shot in the arm. T.B. admitted that he knew Jones as “Rio,” but denied that
Jones was at the scene of the shooting. T.B. stated that he saw Twin and Rio in a
green Buick on the day of the shooting, but not at the time of the shooting. T.B.
admitted that he identified Jones in a photo array after the shooting, but told the
jury that he did not know who shot him. T.B. told the jury that he only
remembered telling the police that he was shot, but claimed not to remember
telling the police anything about who shot him. T.B. also admitted that after the
shooting he heard S.G.’s sister scream, “‘Rio shot my brothers.’”

¶7 Detective Marco Salaam testified that on July 21, 2014, he
interviewed T.B. and showed T.B. a photo array. Salaam stated that T.B.
identified Jones as the shooter in the photo array. T.B. told Salaam that Jones
“arrived along with another person, and they were inside of a green Buick
LeSabre.” T.B. told Salaam that Jones “exited the vehicle and approached him
and his brother while they were on the porch and fired shots, and he and his
brother were shot.” T.B. also told Salaam that Twin was with Jones.

¶8 Jones testified in his own defense, telling the jury that he personally
knew neither S.G. nor T.B, but was familiar with both of them by name. Jones
stated that he suspected S.G. and T.B. held grudges against him because of a past

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family dispute. Jones stated that he did not shoot either S.G. or T.B. and that he
was in Rockford, Illinois on the day of the shooting. Jones testified that he went to
Rockford before the fourth of July to visit his pregnant sister, who was close to
giving birth. Jones stated that his sister gave birth on July 11, 2014, and that he
was present for the birth. Jones told the jury that while in Rockford, he worked at
his cousin’s funeral home and did not have a car at his disposal. Jones said that
his mother and sister picked him and his then-girlfriend up in Milwaukee and
drove them to Rockford. Jones said that he did not return to Milwaukee until
July 16 or 17, 2014. Jones also admitted that his nickname is Rio. He testified
that he did not know Twin personally and did not know someone named Shamic.

¶9 Lexi Ford, Jones’s former girlfriend, testified that she and Jones
went to Rockford prior to the fourth of July. Ford stated that Jones’s sister picked
them up in Milwaukee and that Ford stayed in Rockford for one week, but Jones
stayed longer. Ford stated that they went to Rockford to visit Jones’s sister, who
was about to give birth. Ford told the jury that she “believed” they were in
Rockford on the day of the shooting. Ford also told the jury that she was robbed
in July 2014. Ford was unsure of the date of the robbery, but suspected that it took
place on July 23, 2014. Ford could not confirm whether she was in Rockford
before or after the robbery.

¶10 The State called multiple rebuttal witnesses. Milwaukee Police
Officer Jason Daering testified that Ford called the Milwaukee Police Department
on the night of July 23, 2014, to report an armed robbery. Ford told Daering that
she had been robbed that day.

¶11 Detective Mary Schmitz testified that she spoke with Ford about
Ford’s time in Rockford. Ford told Schmitz that she went to Rockford with Jones

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to visit Jones’s sister. Ford confirmed that she was robbed on July 23, 2014, and
told Schmitz that she and Jones went to Rockford after the robbery. Ford also told
Schmitz, however, that she and Jones went to Rockford in early July.

¶12 Detective Kenton Burtch told the jury that he interviewed Brandy
Collins, the director of the funeral home where Jones claimed to work while in
Rockford. Burtch testified that Collins initially denied being related to Jones, but
ultimately admitted that Jones was her distant cousin. Collins told Burtch that
Jones worked at the funeral home “sometime in the summer,” but did not give
specific dates. Collins also told Burtch that she did not have records of Jones’s
employment. Burtch said that toward the end of his interview with Collins, she
“backed off the fact that he was working there at any given period of time,
explaining that she would not tell us he was working there during this incident
because she didn’t want to get herself involved in anything that would bring
trouble or anything to herself.” Burtch also stated that he learned, while
investigating an unrelated matter, that Jones and Shamic were “blood cousin[s].”

¶13 The jury convicted Jones of two counts of first-degree recklessly
endangering safety and one count of being a felon in possession of a firearm. The
trial court sentenced Jones to consecutive sentences totaling fourteen years of
initial confinement and nine years of extended supervision.

Postconviction Proceedings

¶14 Jones filed a postconviction motion, arguing, as relevant to this
appeal, that trial counsel was ineffective and that the trial court made an
evidentiary error. Specifically, Jones argued that counsel was ineffective for
failing to call Milwaukee Police Officer Erin Tischer as a witness. According to
Jones, Tischer would have corroborated T.B.’s testimony, and contradicted

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Salaam’s testimony, about whether T.B. knew the identity of his shooter. Jones
also argued that the trial court erred in admitting Slomczewski’s testimony over
Jones’s hearsay objection. The postconviction court denied the motion.

¶15 In a second postconviction motion, Jones argued that trial counsel
was ineffective for failing to subpoena, interview, or call to testify two alibi
witnesses.1 Jones argued that two of his sisters—Sharneice Boyd and Antiwineice
Jones—could have corroborated his alibi defense that he was in Rockford at the
time of the shooting. Jones attached affidavits from both sisters, each of whom
stated that Jones was in Rockford during the relevant time period. Jones also
submitted an affidavit stating that he told trial counsel about his sisters’ potential
testimony. The postconviction court again denied the motion, finding the
affidavits inconsistent with each other and with trial testimony. This appeal
follows.

DISCUSSION

¶16 On appeal Jones argues that: (1) trial counsel was “prejudicially
ineffective” for failing to call Tischer to “rebut the claims of Detective Salaam”;
(2) trial counsel was “prejudicially ineffective” for failing to “interview, subpoena,
and call two alibi witnesses whose testimony would have supported [Jones’s] alibi
defense”; and (3) the trial court erred in denying trial counsel’s motion to exclude
Slomczewski’s testimony as hearsay. (Capitalization omitted.) We address each
issue in turn.

1
Jones filed a notice of appeal, but voluntarily dismissed the appeal in favor of filing a
second postconviction motion.

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No. 2018AP1366-CR

I. Ineffective Assistance of Counsel

¶17 To prove ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that such performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). Performance is
deficient if it falls outside the range of professionally competent representation,
but we strongly presume that counsel acted reasonably within professional norms.
Pitsch, 124 Wis. 2d at 636-37. To demonstrate prejudice, a defendant must show
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
“[A]n ineffective assistance of counsel claim presents a mixed question of fact and
law.” State v. Champlain, 2008 WI App 5, ¶19, 307 Wis. 2d 232, 744 N.W.2d
889. We review a postconviction court’s findings of fact for clear error; whether
defense counsel’s performance is constitutionally infirm is a question of law,
which we review de novo. See id.

¶18 We agree with the postconviction court that Jones did not receive
ineffective assistance of counsel. Assuming, without deciding, that trial counsel
should have called Tischer to testify, Jones has not demonstrated that the result of
his trial would have been different. Jones asserts that Tischer originally
interviewed him on the date of the incident and, based on a police report, would
have told the jury that T.B. said he did not see his shooter. The postconviction
court rejected this argument, finding that T.B. was an “evasive” witness and
lacked credibility. The court found Salaam to be a credible witness and
determined that even if Tischer had testified, it would not have bolstered T.B.’s

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credibility. We are bound by the postconviction court’s credibility determinations.
See State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d
421, 651 N.W.2d 345. Accordingly, we conclude that trial counsel was not
ineffective for failing to call Tischer as a witness.

¶19 Nor was counsel ineffective for failing to call Jones’s two sisters to
support his alibi defense. Jones contends that his sisters could have provided a
timeline of Jones’s whereabouts showing that Jones was in Rockford at the time of
the shooting, and thus, could not have shot S.G. and T.B. The postconviction
court disagreed, stating that “[a]n examination of [the] respective affidavits …
would have presented more credibility problems for [Jones].” The record supports
the postconviction court’s determination.

¶20 Boyd’s affidavit states that she lives in Rockford and gave birth to a
baby boy on July 10, 2014. The affidavit further states that Jones came to
Rockford “alone” the week before the birth, and stayed in her home for two
weeks. The affidavit further states that Jones “was picked up in Milwaukee by my
mother.”

¶21 On the contrary, Antiwineice Jones’s affidavit states that she picked
up both Jones and Ford in Milwaukee. The affidavit further states that Jones and
Ford stayed at the family home while in Rockford.

¶22 As the postconviction court noted, the affidavits not only
contradicted each other, but also contradicted multiple aspects of both Jones’s and
Ford’s trial testimony. Jones testified that he and Ford drove to Rockford with his
mother and sister, while Ford’s testimony makes no mention of Jones’s mother.
Ford’s testimony also called into question the actual dates that she and Jones were
in Rockford, as Ford could not definitively state whether they went to Rockford

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before or after the July 23, 2014 robbery. The record supports the postconviction
court’s determination that “there is not a reasonable probability the jury would
have reacted favorably to the mound of inconsistencies which the sisters’
additional testimony would have produced.” Accordingly, trial counsel was not
ineffective for failing to call Jones’s sisters to corroborate his alibi defense.

II. Trial Court Error

¶23 Jones contends that the trial court erred in permitting the jury to hear
Slomczewski’s hearsay testimony, namely, that S.G. told Slomczewski that Jones
was the shooter. The trial court admitted Slomczewski’s testimony under the prior
inconsistent statement exception to the hearsay rule. See WIS. STAT.
§ 908.01(4)(a)1.2 Jones argues that because S.G. testified that he could not recall
identifying Jones as the shooter, the trial court was required to determine whether
S.G.’s lack of memory was false, pursuant to State v. Lenarchick, 74 Wis. 2d 425,
247 N.W.2d 80 (1976).3

¶24 We conclude that Jones misunderstands the holding of Lenarchick.
Contrary to Jones’s argument, Lenarchick does not require a trial court finding
that a witness’s lack of memory is in bad faith before admitting prior inconsistent
statements. Rather, the case holds that when “a witness denies recollection of a
prior statement, and where the trial court has reason to doubt the good faith of
such denial, [it] may in [its] discretion declare such testimony inconsistent and

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
3
The State contends that Jones did not preserve this issue for appellate review; however,
for completeness, we address the merits of Jones’s argument.

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No. 2018AP1366-CR

permit the prior statement’s admission into evidence.” Lenarchick, 74 Wis. 2d at
436. The supreme court stated that “we should reverse only if we conclude that
‘apparent lapse of memory so affected ... [the] right to cross-examine as to make a
critical difference in the application of the Confrontation Clause[.]” Id. at 444
(citation omitted). Jones fails to show that such a situation is present here.

¶25 S.G.’s alleged statements to Slomczewski revealed that S.G. made
multiple statements inconsistent with his trial testimony. S.G. was subject to
cross-examination about his claim that he did not remember his conversation with
Slomczewski. Moreover, the postconviction court clarified that the trial court
“implicitly found that [S.G.] was purposely not recalling a prior statement he had
made to the detective, thereby making the detective’s testimony admissible to
rebut his prior inconsistent statement.” The record supports this determination.

¶26 For the foregoing reasons, we affirm the judgment and the orders
denying Jones’s postconviction motions.

By the Court.—Judgment and orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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