State v. Kendrick Deavane Alexander

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.
November 26, 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. 2017AP2273-CR Cir. Ct. No. 2013CF1967

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KENDRICK DEAVANE ALEXANDER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JONATHAN D. WATTS and FREDERICK C. ROSA,
Judges. Order affirmed in part, reversed in part, and cause remanded with
directions.

Before Brash, P.J., 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. 2017AP2273-CR

¶1 PER CURIAM. Kendrick Deavane Alexander appeals from a
judgment of conviction for two counts of first-degree recklessly endangering
safety by use of a dangerous weapon and one count of being a felon in possession
of a firearm. See WIS. STAT. §§ 941.30(1), 939.63(1)(b), and 941.29(2)(a) (2013-
14).1 Alexander also appeals from an order denying his postconviction motion
that sought a new trial or, in the alternative, resentencing.2

¶2 We conclude that Alexander is entitled to a Machner hearing with
respect to his claim that trial counsel provided ineffective assistance.3 Therefore,
we reverse that part of the postconviction order and remand for a Machner
hearing. In light of the remand, it would be premature to consider Alexander’s
request that this court exercise its discretion and order a new trial in the interest of
justice, so we will not address that request. However, in the interest of judicial
economy, this court has considered Alexander’s argument that the trial court
erroneously exercised its sentencing discretion when it stated, “I represent the
community.” We conclude that the trial court’s statement, viewed in context, did
not constitute an erroneous exercise of discretion. Therefore, we affirm that part
of the postconviction order denying Alexander’s request for resentencing.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
While Alexander appeals from both a judgment and an order, we address only the order
for the reasons set forth in the opinion.

The Honorable Jonathan D. Watts presided over Alexander’s jury trial and sentenced
him. The Honorable Frederick C. Rosa denied Alexander’s postconviction motion.
3
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2017AP2273-CR

BACKGROUND

¶3 The background facts are undisputed. On the night of April 6, 2013,
two women fought in the street while others watched.4 At one point, a man exited
a burgundy-colored vehicle, raised a gun, and fired shots that struck and injured
two individuals, E.W. and C.J. The alleged shooter, Alexander, was charged with
two counts of first-degree recklessly endangering safety and one count of being a
felon in possession of a firearm.

¶4 At trial, the issue was the identity of the shooter. Both E.W. and C.J.
testified that they did not previously know Alexander, but they were able to
identify him in a photo array and in court as the man who shot them. One of the
two women who fought in the street, S.J., testified that she had seen Alexander
before and recognized him from his Facebook page, which she viewed before the
police showed her a photo array. She said the photo of Alexander she saw on
Facebook showed him holding two guns. S.J. also testified that she believed that
E.W. and C.J. had “probably communicated” with each other about the fact that
Alexander was on Facebook.

¶5 K.F., who is a friend of S.J., testified that she saw the person fire a
gun. She identified Alexander as the shooter in a photo array that she was shown
a few days after the shooting, and she identified him in court. K.F. also testified
that she had seen a photo of Alexander on Facebook before identifying him in the
photo array.

4
Police officers were dispatched to the scene shortly before one o’clock in the morning
on April 7, 2013.

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No. 2017AP2273-CR

¶6 Trial counsel questioned Detective Jeffrey Sullivan about the photo
arrays he used with the witnesses. Trial counsel asked Sullivan about the effect of
having a witness see an individual’s photo on Facebook prior to viewing a photo
array, and Sullivan acknowledged that “it does lessen the anonymity of a photo
array if people are shown” an individual’s photo ahead of time. However, when
asked whether people sometimes “make false identification[s]” of a person in a
photo array, Sullivan stated: “In my 22 years, I can’t recall of it happening. I
don’t know throughout the country. I can’t speak specifically on the case. In my
22 years, I have never known a person to identify [someone] that actually wasn’t
the suspect in cases that I have been involved in.”

¶7 Sullivan also disagreed with trial counsel’s suggestion that “at night
it’s harder to identify somebody than during the day.” Sullivan said: “No, I
wouldn’t agree with that blanket statement. Depends on the lighting; depends on
the distance. During the day, if they’re a block away, it would be hard to identify
someone. At night, with lights, it’s much easier.”

¶8 The jury found Alexander guilty of all three charges. The trial court
sentenced him to a total of ten years of initial confinement and six years of
extended supervision.

¶9 Alexander filed a postconviction motion seeking a new trial on
grounds that his trial counsel performed deficiently in two ways. The first alleged
deficiency was failing to present expert testimony on eyewitness identification,
which Alexander claimed was necessary to “explain[] to the jury the pitfalls of
eyewitness identification and the concerns about the reliability of the
identifications in this particular case.” Alexander argued that “an expert witness
could have countered some of the questionable statements made by [Detective]

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No. 2017AP2273-CR

Sullivan regarding identification, or eliminated the need to ask [Detective]
Sullivan identification questions.” Alexander attached to his postconviction
motion an analysis by Dr. Lawrence T. White, Professor and Chair of Psychology
at Beloit College, concerning the identifications in this case and the opinions
offered by Sullivan.5

¶10 The second deficiency alleged in the postconviction motion was that
trial counsel did not interview and present alibi testimony from Alexander’s
girlfriend, Tamara Hackett, who was living with Alexander at the time of the
shooting. The motion indicated that Hackett would have testified that she was
with Alexander both the night of and the night after the shooting, celebrating their
two-year anniversary by watching movies at home. The motion further alleged
that Hackett spoke to Alexander’s trial counsel before the trial, and trial counsel
“simply told her that this information would not help [Alexander’s] trial.”
Alexander also asserted that, if Hackett had testified at trial, Alexander “would
have exercised his constitutional right to testify.” Alexander concluded:

Given that Ms. Hackett’s testimony would have
supported the defense’s theory of misidentification—that
Mr. Alexander was not at the scene of the shooting—and
also impacted Mr. Alexander’s decision to exercise his
constitutional right to testify, trial counsel’s failure to call
Ms. Hackett as a witness constituted deficient performance.

¶11 In addition to arguing that Alexander is entitled to a new trial based
on ineffective assistance of trial counsel, Alexander sought a new trial in the
interest of justice. Finally, Alexander asserted that if he was not granted a new

5
For instance, Dr. White questioned Sullivan’s testimony that in his experience, no
witness had ever falsely identified someone. The expert wrote: “This seems highly unlikely
given that, in 10 studies of actual police lineups, 33% of witnesses who made an identification
chose a known-innocent filler.”

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No. 2017AP2273-CR

trial, he should at least be resentenced because at one point during the sentencing
hearing, the trial court stated, “I represent the community.”

¶12 The State opposed the postconviction motion. The trial court denied
the motion without an evidentiary hearing, except it vacated two of the three DNA
surcharges that it had imposed.6 The trial court rejected Alexander’s ineffective
assistance claim on the grounds that, even if trial counsel performed deficiently,
Alexander had not been prejudiced. With respect to Alexander’s sentencing
request, the trial court found that the trial court’s comment at sentencing did not
constitute an erroneous exercise of discretion. This appeal follows.

DISCUSSION

¶13 There are two primary issues on appeal. The first is whether
Alexander is entitled to an evidentiary hearing on his ineffective assistance claim.
The second is whether the trial court erroneously exercised its sentencing
discretion. We consider each issue in turn.

I. Request for an evidentiary hearing on ineffective assistance claim.

¶14 We begin with the applicable legal standards. To prevail on an
ineffective assistance claim, a defendant must show both that counsel’s
performance was deficient and that the deficient performance prejudiced the

6
Alexander had asked the trial court to vacate the three DNA surcharges on grounds that
they were improperly imposed in violation of ex post facto principles. After the trial court
vacated only two of the surcharges, Alexander filed a motion for reconsideration seeking removal
of the final surcharge. The resolution of that motion is not part of this appeal. We also note that,
in its appellate brief, the State points out that “in light of recent precedent, the [trial] court should
have left all $750 of the DNA surcharges intact,” but the State also acknowledges that this court
“has no jurisdiction to review this issue because the State did not file a cross-appeal.” We agree
that the DNA surcharge issue is not before us on appeal, and we will not further discuss the issue.

6
No. 2017AP2273-CR

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
postconviction court must hold a Machner hearing if the defendant’s motion “on
its face alleges sufficient material facts that, if true, would entitle the defendant to
relief.” See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.
Allen instructs us to consider whether the motion adequately alleges “who, what,
where, when, why, and how” trial counsel acted deficiently. See id., ¶23.
Whether the defendant’s motion meets this standard is a question of law that we
review independently. See id., ¶9. “[I]f the motion does not raise facts sufficient
to entitle the movant to relief, or presents only conclusory allegations, or if the
record conclusively demonstrates that the defendant is not entitled to relief,” the
postconviction court has the discretion to deny the defendant’s motion without a
hearing. Id.

¶15 The question before us is whether Alexander has alleged sufficient
material facts that, if true, entitle him to an evidentiary hearing on whether trial
counsel provided constitutionally deficient representation. See id. We conclude
that Alexander is entitled to a Machner hearing on both of the issues that he raises
in his ineffective claim.

¶16 With respect to Alexander’s assertion that trial counsel should have
presented the testimony of an expert on eyewitness identification, we have
examined both the analytical report Alexander submitted with his postconviction
motion and the testimony of Detective Sullivan. Dr. White’s opinion, taken as
true for purposes of evaluating whether Alexander has presented sufficient
material facts to require a Machner hearing, supports Alexander’s assertion that
trial counsel could have used an expert to raise doubts about the eyewitness
identifications of Alexander by numerous witnesses, especially in light of
allegations that those witnesses may have seen pictures of Alexander on Facebook

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No. 2017AP2273-CR

before viewing the photo array. The report also supports Alexander’s argument
that trial counsel could have avoided asking Sullivan questions that led, according
to Dr. White, to the presentation of inaccurate information about eyewitness
testimony. While the State urges us to conclude that “a reasonably competent
attorney could have decided not to … [present] expert testimony on eyewitness
identification,” we conclude that it would be premature to analyze trial counsel’s
actions in this case until the facts concerning his decisions about seeking out an
expert and questioning Sullivan are developed at a Machner hearing.

¶17 With respect to Alexander’s assertion that trial counsel should have
presented the alibi testimony of Hackett, we conclude that Alexander’s allegations
are sufficient to warrant a hearing. In his postconviction motion, Alexander
alleged that Hackett was with Alexander when the crimes were committed and that
she shared that information with trial counsel prior to the trial. The trial court
concluded that there is not “a reasonable probability the jury would have believed
her testimony.” But, until Hackett’s testimony is presented at a Machner
hearing—where the trial court can evaluate her credibility—it would be premature
to evaluate the potential impact of Hackett’s testimony on a jury. Further, we are
not persuaded by the State’s assertions on appeal that “the record sufficiently
refutes Alexander’s allegation” that trial counsel “knew about an alibi defense
before trial” and that “even if an alibi defense was available, a reasonably
competent attorney could have decided not to present one.” Rather than
speculating about what trial counsel may have known or may have decided to do,
we conclude that here, where Alexander has sufficiently pled his ineffective
assistance claim, those facts should be developed at a Machner hearing.

¶18 In summary, we are persuaded that Alexander’s postconviction
motion adequately alleged the “who, what, where, when, why, and how” trial

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No. 2017AP2273-CR

counsel performed deficiently. See Allen, 274 Wis. 2d 568, ¶23. Therefore, we
reverse that portion of the postconviction order and remand this matter for a
Machner hearing on Alexander’s ineffective assistance claim. To be clear, this
court is not concluding either that trial counsel was deficient or that Alexander
suffered any prejudice. We are merely concluding that Alexander has alleged
sufficient facts to entitle him to a Machner hearing. See State v. Sholar, 2018 WI
53, ¶54, 381 Wis. 2d 560, 912 N.W.2d 89 (“[W]hen an appellate court remands for
a Machner hearing, it must leave both the deficient performance and the prejudice
prongs to be addressed, because whether a defendant was prejudiced depends upon
the existence of deficient performance.”).

II. Sentencing challenge.

¶19 In the interest of judicial economy, we will consider the fully briefed
issue of whether Alexander is entitled to resentencing based on a single statement
by the trial court at the sentencing hearing. Specifically, the trial court began its
sentencing remarks by addressing the gravity of the offense, the need to protect the
public, and Alexander’s character. See State v. Odom, 2006 WI App 145, ¶7, 294
Wis. 2d 844, 720 N.W.2d 695 (“The primary factors for the sentencing court to
consider are the gravity of the offense, the character of the offender, and the
public’s need for protection.”). Then, before stating the amount of time Alexander
would serve in prison on each count, the trial court stated:

I want the defendant to understand that this is not an
easy job and that I’m not here simply to talk about
punishment but not have it done on my behalf. I represent
the community. I’m looking out for the safety of the
community and it’s your community. Part of the
community is here today. Part of that community is your
family, I well know that, but the other part of the
community is the family of all the victims and all the
people that were shot at by you and I have to look out for

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No. 2017AP2273-CR

everyone, so this sentence is balancing, as I said, and it
considers a lot of different factors that I’ve touched upon.

(Emphasis added.)

¶20 Alexander argues that the trial court erred by stating, “I represent the
community.” Alexander contends:

[I]t is not the function of a judge to “represent” the
community. That is the job of the prosecutor. It is the
prosecutor, not the judge, who identifies violations against
the people and speaks “on behalf of” the community….

….

Mr. Alexander agrees that a circuit court can, and
should, “consider” the interests of the community when
imposing sentence. However, considering the interests of
the community is different than stating that “I represent the
community.”

….

… [T]he court erroneously exercised its discretion
when it stated that “I represent the community” and
Mr. Alexander is entitled to a new sentencing hearing. See
generally, In re John Doe Proceeding, 2004 WI 65, ¶10,
272 Wis. 2d 208, 680 N.W.2d 792 (stating that when a
judge exceeds his or her powers, it is an erroneous exercise
of discretion).

(Emphasis omitted; bolding added.)

¶21 On appeal, our review is limited to determining whether the trial
court erroneously exercised its sentencing discretion. See State v. Gallion, 2004
WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. “When discretion is exercised on
the basis of clearly irrelevant or improper factors, there is an erroneous exercise of
discretion.” Id.

¶22 Here, we are not persuaded that the trial court erroneously exercised
its sentencing discretion. The trial court considered proper sentencing factors,

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No. 2017AP2273-CR

including the need to protect the public. See Odom, 294 Wis. 2d 844, ¶7. When
we view the trial court’s challenged statement in context, including the trial
court’s statements that immediately followed, it is clear that the trial court’s
statement that it “represent[s] the community” was part of its analysis of the need
to protect the public. We are unconvinced that the particular words used in this
case constituted an erroneous exercise of discretion. Therefore, we affirm that part
of the trial court’s order denying Alexander’s request for resentencing.

CONCLUSION

¶23 For the foregoing reasons, we conclude that Alexander is entitled to
a Machner hearing with respect to his claim that trial counsel provided ineffective
assistance. Therefore, we reverse the part of the postconviction order and remand
for a Machner hearing. In light of the remand, we decline to consider Alexander’s
request that this court exercise its discretion and order a new trial in the interest of
justice at this time. Finally, with respect to the sentencing, we conclude that the
trial court’s statement, viewed in context, did not constitute an erroneous exercise
of discretion. Accordingly, we affirm that part of the postconviction order
denying Alexander’s request for resentencing.

By the Court.—Order affirmed in part, reversed in part, and cause
remanded with directions.

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

11