State v. Michael Williams

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.
February 6, 2020
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. 2018AP19-CR Cir. Ct. No. 2016CF991

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL WILLIAMS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: JEFFREY A. WAGNER, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, 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).

¶1 PER CURIAM. Michael Williams appeals a judgment of
conviction for first-degree reckless homicide as a party to a crime, by use of a
No. 2018AP19-CR

dangerous weapon, and felon in possession of a firearm, following a jury trial.
Williams contends that the circuit court erred by allowing a witness to testify that
she had seen Williams “once or twice” in the past with Williams’s alleged co-actor
in the homicide. Williams also contends that the prosecutor made improper
remarks during closing arguments that shifted the burden of proof to Williams to
prove his innocence. Finally, Williams contends that the standard jury instruction
directing the jury to “search for the truth” lowered the State’s burden of proof
below the reasonable doubt standard. For the reasons set forth in this opinion, we
reject these contentions. We affirm.

¶2 In September 2016, Williams was charged with first-degree
intentional homicide as a party to a crime, by use of a dangerous weapon, and
felon in possession of a firearm. The charges stemmed from the July 2015
shooting death of Frederick Martin at a gas station on Center Street in Milwaukee.
The State’s theory was that Williams shot Martin and fled the gas station with
Tony Madison, and that Williams and Madison were shortly thereafter the victims
of a second shooting that was in retaliation for the Martin shooting.

¶3 Prior to trial, Williams objected to the State eliciting testimony from
witness Tiffany McAffee that McAffee had seen Williams with Madison on one or
two occasions prior to the shooting. Williams argued that the relevance of the
testimony was substantially outweighed by the danger of unfair prejudice because
McAffee did not see Williams at all on the day of the shooting. He also argued
that the testimony “would be totally irrelevant.” The court determined that
Williams’s argument went to the weight of the evidence and allowed the
testimony.

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¶4 Also prior to trial, Williams requested a modified jury instruction on
the State’s burden to prove the elements of the charged offenses beyond a
reasonable doubt. Williams requested that the court omit language from the
standard jury instruction that directs the jury: “While it is your duty to give the
defendant the benefit of every reasonable doubt, you are not [to] search for doubt.
You are to search for the truth.” Instead, Williams argued for the court to instruct
the jury only: “It is your duty to give the defendant the benefit of every reasonable
doubt.” The court denied Williams’s request to modify the instruction.

¶5 The State introduced the following evidence at trial to support its
theory of Williams’s involvement in Martin’s shooting. Miguel Henderson
testified that he met Martin at a gas station on Center Street shortly before the
shooting on July 24, 2015. Henderson was sitting in the front passenger seat of
Martin’s car while Martin sat in the driver’s seat when a man entered the backseat
and shot Martin. Gas station surveillance camera footage showed that a man in
camouflage pants had entered the backseat of Martin’s car right before Martin was
shot and that, immediately after the shooting, the man fled the scene in a red truck
driven by a man wearing a white, blue, and red sweatshirt.

¶6 A silver car that had arrived at the gas station before the shooting
followed the red truck as it fled the gas station after the shooting. About fifteen
minutes later, a second shooting was reported about five miles away on 54th
Street. Surveillance video camera footage in the immediate area of the second
shooting showed a silver car, similar to the one from the gas station, on the scene.
A witness testified that he encountered a man in camouflage pants in that area who
had been shot. Police located a red truck with smeared blood on the driver’s side,
and a maroon minivan with bullet holes that were identified as exit strikes, at a
residence near the site of the second shooting. Madison was found by emergency

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responders several blocks away, suffering from a gunshot wound and wearing a
white, blue, and red sweatshirt that matched the one worn by the driver of the red
truck in the gas station video footage, and was transported to the hospital.
Williams also arrived at the hospital on the evening of July 24, 2015, about an
hour after the 54th Street shooting, suffering from gunshot wounds and wearing
camouflage pants.

¶7 McAffee testified that a shooting occurred outside her home on
54th Street on July 24, 2015. She testified that she was acquainted with Madison,
and that Madison had been at her house that day and had left about an hour before
the shooting occurred. The driveway where the red truck and maroon minivan
were located after the shooting was the driveway for McAffee’s house, and
McAffee identified the maroon minivan as belonging to Madison. Over
Williams’s objection, the State showed McAffee a photograph of Williams, and
McAffee stated that she did not know him but had seen him with Madison “once
or twice” in the past.

¶8 In closing arguments, Williams argued that the State had not met its
burden of proof to establish that Williams had killed Martin. He argued that “the
truth is that we simply don’t know what happened” and that “[w]e don’t have
concrete evidence that tells us what happened to Fred Martin on that day.” In
rebuttal, the State argued that “[t]he thrust of [defense counsel’s] remarks, that’s a
-- kind of a moldy, old ratty defense that we sometimes see when the defense has
no good facts.” Williams objected and, at sidebar, requested a mistrial on grounds
that the State had shifted the burden of proof to the defense. The court denied the
request for a mistrial.

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No. 2018AP19-CR

¶9 After the sidebar, the State continued its rebuttal, arguing that the
defendant’s argument had “no answer” for the facts tying Madison to both
shooting scenes, “no answer” for McAffee’s testimony that she had seen Williams
with Madison, and “no answer” for the fact that Williams had arrived at the
hospital with a gunshot wound and wearing camouflage pants. In the closing jury
instructions, the court gave the following instructions that it intended as curative
related to Williams’s objection to the State’s closing arguments: “Consider
carefully the arguments of the attorneys, but … their arguments and opinions are
not evidence”; and “[t]he burden of proof is entirely on the State of Wisconsin.
And the defense can just -- do nothing. The elements have to be proved by the
[S]tate beyond a reasonable doubt.” The court gave the standard jury instruction
on the State’s burden of proof, including the following: “While it is your duty to
give the defendant the benefit of every reasonable doubt, you are not [t]o search
for doubt. You are to search for the truth.” The jury found Williams guilty of the
lesser included offense of first-degree reckless homicide as a party to a crime, by
use of a dangerous weapon, and felon in possession of a firearm. Williams
appeals.

¶10 Williams contends that the circuit court erred by allowing McAffee
to testify that she had seen Williams with Madison once or twice in the past but
without specifying dates or locations. He contends that the evidence should have
been excluded under WIS. STAT. § 904.03 (2017-18)1 because its probative value
was substantially outweighed by the resulting prejudice.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP19-CR

¶11 Evidence must be relevant to be admissible at trial. WIS. STAT.
§ 904.02. Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” WIS. STAT. § 904.01. Even
if evidence is relevant, it “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” WIS. STAT. § 904.03.

¶12 “We review a circuit court’s decision to admit or exclude evidence
under an erroneous exercise of discretion standard.” Martindale v. Ripp, 2001 WI
113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698. We “will uphold a decision to admit
or exclude evidence if the circuit court examined the relevant facts, applied a
proper legal standard, and, using a demonstrated rational process, reached a
reasonable conclusion.” Id.

¶13 Williams contends that the probative value of McAffee’s testimony
that she previously had seen Williams with Madison “once or twice” was
extremely low. He contends that the evidence had little weight because McAffee
did not explain when or where she had seen Williams with Madison. He points
out that McAffee did not testify that she had seen Williams on the day of the
shootings, gave no opinion as to the closeness of their relationship, and testified
that she did not even know Williams’s name prior to the police investigation in
this case. Williams contends that, in contrast, the prejudicial nature of the
evidence was extremely high, arguing that McAffee’s testimony connecting
Williams to Madison was key to the State’s case. Williams argues that the State
had good evidence that Madison had been at the scene of both shootings, but very
little to connect Williams with the shootings. Williams contends that the State

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No. 2018AP19-CR

therefore needed McAffee’s testimony connecting Williams to Madison to
convince the jury to link Williams to the shootings, and that the State did so by
arguing repeatedly that McAffee’s testimony established that Williams and
Madison were “associates.”

¶14 Williams also contends that the circuit court failed to properly
exercise its discretion when it admitted McAffee’s testimony because the court did
not explain how it weighed the probative value against the danger of unfair
prejudice. He contends that the circuit court admitted the evidence on its
assessment that the evidence would not carry much weight with the jury, rather
than weighing the evidence’s probative value against its potential prejudice.

¶15 In response, the State argues that the evidence was probative of the
connection between Williams and Madison, and that it was therefore relevant.
The State then contends that Williams’s prejudice argument fails because
Williams argues only that the evidence prejudiced Williams by supporting the
State’s theory that Williams and Madison were involved in the homicide together.
That is, the State contends, Williams fails to make any argument that the evidence
was unfairly prejudicial as required under WIS. STAT. § 904.03. It argues that
Williams’s argument that the court failed to properly exercise its discretion fails
because the court indicated that the issue had been discussed in chambers. It also
argues that the court’s on-the-record explanation that Williams’s argument went to
the weight of the evidence did not indicate an erroneous exercise of discretion.

¶16 In reply, Williams makes an argument that McAffee’s testimony was
unfairly prejudicial. He contends that it had “a tendency to influence the outcome
by improper means,” see State v. Sullivan, 216 Wis. 2d 768, 789-90, 576 N.W.2d
30 (1998), by inviting the jury to reach a decision about Williams’s connection to

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No. 2018AP19-CR

Madison based on mere speculation. See Cudd v. Crownhart, 122 Wis. 2d 656,
662, 364 N.W.2d 158 (Ct. App. 1985). He contends that the circuit court’s limited
remarks in admitting the evidence were not a sufficient exercise of discretion, and
that the court’s off-the-record statements in chambers cannot establish that the
court properly exercised its discretion.

¶17 We are not persuaded that admission of McAffee’s testimony was an
erroneous exercise of discretion. While we agree with Williams that McAffee’s
testimony that she had seen Williams with Madison “once or twice” had low
probative value,2 we do not agree that the evidence was unfairly prejudicial. We
reject Williams’s initial argument that the evidence should have been excluded
because it was highly prejudicial to Williams. As the State points out, that is not
the test. Rather, the test is whether the evidence was unfairly prejudicial. As to
unfair prejudice, we reject Williams’s contention that the evidence tended to
influence the outcome by improper means. McAffee’s testimony that she had seen
Williams with Madison once or twice did not invite the jury to reach a verdict
based on speculation. Rather, it was an allegation of fact for the jury to consider
along with all of the other trial evidence in deciding whether Williams was
involved in Martin’s shooting, and the State encouraged the jury to draw a
reasonable inference from the evidence when it described Williams and Madison
as “associates.” We are not persuaded to reach a different conclusion based on the
circuit court’s lack of a detailed explanation of its exercise of discretion in
admitting the evidence. State v. Pico, 2018 WI 66, ¶15, 382 Wis. 2d 273, 914

2
Williams does not argue on appeal that the evidence was not relevant.

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No. 2018AP19-CR

N.W.2d 95 (stating that the reviewing court may search the record for reasons to
sustain a circuit court’s discretionary decision).

¶18 Next, Williams contends that the State made improper remarks
during closing arguments that shifted the burden of proof to Williams to prove his
innocence. He contends that the State’s closing arguments, as a whole, denied him
a fair trial and violated his right to due process.3

¶19 “[A] motion for a mistrial based on prosecutorial misconduct is
reviewed under an erroneous exercise of discretion standard.” State v. Patterson,
2010 WI 130, ¶56, 329 Wis. 2d 599, 790 N.W.2d 909. We will not reverse a
circuit court’s decision to deny a motion for a mistrial based on improper
arguments by the State “unless there is evidence of an erroneous exercise of
discretion and prejudice to the defendant.” See id. (quoted source omitted).

¶20 First, Williams contends that the State made improper personal
attacks on opposing counsel. See United States v. Young, 470 U.S. 1, 9 & n.7
(1985) (“A personal attack by the prosecutor on defense counsel is improper ….”
(quoted source omitted)). Williams cites the following remark by the State in
closing arguments as personally disparaging defense counsel: “The thrust of
[defense counsel’s] remarks, that’s a -- kind of a moldy, old ratty defense that we
sometimes see when the defense has no good facts.” Williams contends that this

3
The State argues that Williams forfeited any objection to the arguments the State made
after Williams’s objection and the court’s ruling at sidebar by failing to make any further
objection. Williams replies that his objection in the middle of the State’s comments covered the
State’s further objectionable comments after the sidebar. Because we conclude that the State’s
comments do not establish reversible error in light of the court’s curative instructions, we need
not reach the issue whether Williams properly preserved his objections to each of the State’s
comments.

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No. 2018AP19-CR

opined as to the merits of Williams’s defense and the character of his defense
counsel, thus shifting the burden of proof to Williams to prove his innocence.
Second, Williams contends that the State also shifted the burden of proof to
Williams by repeatedly stating that Williams had “no answer” for the facts that the
State asserted established Williams’s guilt. Williams argues that the State’s
comments left the jury with the impression that Williams had the burden of
providing answers to the State’s evidence to prove his innocence.

¶21 Williams contends that this case is akin to State v. Smith, 500 F.2d
293, 294-95 (6th Cir. 1974), which held that the State impermissibly shifted the
burden of proof to the defense when it told the jury to “require” the defense to
show a “reasonable explanation” for the State’s evidence. Williams argues that
here, as in Smith, the State’s closing arguments confused the jury as to the burden
of proof and impermissibly commented on Williams’s exercise of his right not to
testify. See id. at 296-97. He argues that the State’s comments denied him his due
process right to a fair trial by infecting the trial with unfairness. See State v.
Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498 (Ct. App. 1992).

¶22 The State does not dispute that the prosecutor made inappropriate
remarks in closing arguments,4 but argues that Williams was not prejudiced by
them because the court gave the following curative instructions following the
State’s closing arguments: “Consider carefully the arguments of the attorneys, but
… their arguments and opinions are not evidence”; and that “[t]he burden of proof

4
The State takes the position that its “moldy, old ratty defense” comments were
inappropriate. It does not state its position as to whether the “no answer” arguments were
inappropriate. We caution the State that this court does not sanction closing arguments that imply
that the defense has any obligation to present evidence.

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No. 2018AP19-CR

is entirely on the State of Wisconsin. And the defense can just -- do nothing. The
elements have to be proved by the [S]tate beyond a reasonable doubt.” See State
v. Bembenek, 111 Wis. 2d 617, 634, 331 N.W.2d 616 (1983) (“Where a [circuit]
court gives the jury a curative instruction, the appellate court may conclude that
such instruction erased any possible prejudice, unless the record supports the
conclusion that the jury disregarded the [circuit] court’s admonition.”). The State
contends that, here, there is no evidence that the jury disregarded the court’s
curative instructions.

¶23 The State argues that State v. Mayo, 2007 WI 78, 301 Wis. 2d 642,
734 N.W.2d 115, is instructive. In Mayo, the State made disparaging remarks
about the role of defense counsel during closing arguments. Id., ¶42. The court
concluded, however, that the remarks did not prejudice Mayo when considered in
the context of the entire trial because the role of defense counsel is common
knowledge, and the jury was instructed that closing arguments are not evidence.
Id., ¶¶43-44. The State contends that here, as in Mayo, there is no likelihood that
the State’s remarks so infected the trial with unfairness as to deprive Williams of
due process in light of the court’s instructions to the jury.

¶24 Williams replies that the court’s curative instructions were
insufficient in light of the State’s repetitive improper arguments. See Hoppe v.
State, 74 Wis. 2d 107, 120, 246 N.W.2d 122 (1976) (stating that if improper
arguments by the State were egregious and repetitive, curative instruction may be
insufficient to dispel prejudice). Williams contends that the purported curative
instructions were not, in fact, curative because they failed to specify which
statements the jury should disregard and merely reworded the standard burden of
proof instruction. He argues that Mayo is distinguishable because, in Mayo, the

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No. 2018AP19-CR

improper comments were not as repetitive as compared to this case and did not
shift the burden of proof to the defense.

¶25 We conclude that the State’s improper remarks in closing arguments
did not prejudice Williams. See Patterson, 329 Wis. 2d 599, ¶56. While the
State’s remarks may have criticized the defense for not presenting evidence, and
may have indicated that the defense had an obligation to present evidence to
counter the State’s evidence of Williams’s guilt, the court then issued curative
instructions after closing arguments were completed that the attorneys’ arguments
were not evidence and that “[t]he burden of proof is entirely on the State of
Wisconsin. And the defense can just -- do nothing. The elements have to be
proved by the [S]tate beyond a reasonable doubt.” Thus, the court instructed the
jury that, contrary to any indication otherwise from the State’s remarks, the
defense had no burden to introduce any evidence at trial. We do not agree with
Williams that the curative instructions were insufficient because they reworded the
burden of proof instruction. The court issued the additional instructions to the jury
as to the burden of proof to cure any potential that the State had prejudiced
Williams with remarks criticizing the defense for allegedly failing to present
evidence. Because there is no evidence that the jury disregarded the curative
instructions, we conclude that those instructions erased any possible prejudice
from the State’s improper remarks.5 See Bembenek, 111 Wis. 2d at 634.

¶26 Finally, Williams contends that the standard burden of proof jury
instruction directing the jury to “search for the truth” violated his right to be

5
Williams has not established that State v. Smith, 500 F.2d 293 (6th Cir. 1974), is
controlling and compels a different result. We note that, here, the State did not tell the jury to
“require” the defense to provide an explanation for the State’s evidence.

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No. 2018AP19-CR

convicted on evidence beyond a reasonable doubt. See State v. Harvey, 2002 WI
93, ¶19, 254 Wis. 2d 442, 647 N.W.2d 189 (1970). Williams recognizes that, in
State v. Avila, 192 Wis. 2d 870, 535 N.W.2d 440 (1995), our supreme court
rejected the same challenge to the standard burden of proof instruction and held
that it was not reasonably likely that the instruction reduced the burden of proof
below the reasonable doubt standard. Williams contends, however, that Avila was
wrongly decided, and argues that social science research after Avila further
demonstrates that Avila’s reasoning was incorrect.

¶27 We previously placed this appeal on hold because the Wisconsin
Supreme Court granted a petition for review in State v. Trammell,
No. 2017AP1206-CR, unpublished slip op. (WI App May 8, 2018) to address
whether the holding in Avila was good law or if Avila should be overruled on the
ground that it had been rebutted by empirical evidence. The supreme court has
now issued a decision in Trammell, holding that the standard jury instruction
“does not unconstitutionally reduce the State’s burden of proof below the
reasonable doubt standard.” State v. Trammell, 2019 WI 59, ¶67, 387 Wis. 2d
156, 928 N.W.2d 564. Accordingly, we reject Williams’s contentions that Avila
was wrongly decided.

¶28 Williams also argues that, even if the standard burden of proof jury
instruction is not facially unconstitutional, it was unconstitutional as applied to
him because, in connection with the facts of this case, it lowered the State’s
burden of proof below the reasonable doubt standard. See In re Winship, 397
U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.”). He contends that the State’s
burden of proof was lowered below the reasonable doubt standard because, in

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No. 2018AP19-CR

addition to the objectionable jury instruction for the jury to “search for the truth”:
(1) the State relied heavily on circumstantial evidence, including McAffee’s
testimony about Williams’s connection to Madison; (2) the presenter emphasized
to the jury that the prosecutor’s opinion was that the “truth” was that Williams had
killed Martin and that, if he had not, Williams was the “unluckiest son of a gun in
the world”; and (3) the State faulted Williams for failing to answer questions as to
his guilt that were raised by the evidence. We are not persuaded.

¶29 As explained above, our supreme court reaffirmed in Trammell that
the standard jury instruction directing the jury to “search for the truth” does not
lower the State’s burden of proof below the reasonable doubt standard. See
Trammell, 387 Wis. 2d 156, ¶67. Thus, the jury here was properly instructed on
the State’s burden of proof. We have also concluded that Williams was not
prejudiced by the State’s improper remarks in closing arguments because the court
issued a curative instruction directing the jury that the defense had no obligation to
present any evidence, and reiterating that the burden of proof was entirely the
State’s. We do not agree with Williams that the State’s reliance on circumstantial
evidence or its argument that the evidence established Williams’s guilt effectively
lowered its burden of proof. Accordingly, we reject Williams’s contention that his
due process right to be convicted on evidence that established his guilt beyond a
reasonable doubt was violated in this case.

¶30 For the foregoing reasons, the judgment of the circuit court is
affirmed.

By the Court.—Judgment affirmed.

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

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