State v. Jesse N. McCauley

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.
December 6, 2022
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. 2021AP191-CR Cir. Ct. No. 2016CF5760

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JESSE N. MCCAULEY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JANET C. PROTASIEWICZ, Judge. Affirmed.

Before Brash, C.J., Dugan and White, 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. 2021AP191-CR

¶1 PER CURIAM. Jesse N. McCauley appeals a judgment of
conviction for felony murder and possession of a firearm by a felon. He also
appeals an order of the trial court denying his postconviction motion. On appeal,
he argues that he is entitled to a new trial because the judge was biased in favor of
the State in violation of his right to due process, and that the State presented
insufficient evidence to support his intent to rob the victim in this case. We
disagree, and for the reasons set forth below, we affirm.

BACKGROUND

¶2 McCauley was charged with felony murder, with the underlying
offense of attempted armed robbery, and possession of a firearm by a felon as a
result of his role in the shooting of Scott Ross on the night of December 7, 2016.
As described in the criminal complaint, McCauley’s girlfriend, Lyneesha Battle,
arranged to meet Ross for a date.1 When Ross arrived at Battle’s house, Battle and
McCauley approached Ross in his car. Battle went to the passenger side door, and
McCauley approached Ross at the driver’s side door. McCauley was holding a
gun and told Ross to get out of the car. Ross drove away, and McCauley fired
shots at Ross. Ross suffered a gunshot wound to his back and was pronounced
dead at the scene.2

1
At trial, when asked if “a date means that probably is going to end up in prostitution,”
Battle responded, “Maybe.”
2
Battle was also charged with felony murder for her role in Ross’s death; however, she
entered into a plea agreement with the State that resulted in her pleading guilty to attempted
armed robbery as a party to a crime in exchange for her testimony at McCauley’s trial. Battle had
been sentenced by the time of McCauley’s trial and was serving her sentence. By the time of the
trial, she was nearing the end of her term of initial confinement.

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No. 2021AP191-CR

¶3 The case proceeded to a jury trial. The State called Battle as a
witness at the trial, but during questioning regarding details of that night, Battle’s
testimony consisted largely of responses to the effect that she did not remember.
At one point, the trial court proceeded to call the attorneys to the bench and held a
sidebar conference. At the conclusion of the sidebar conference, the trial court
excused the jury. Once the jury was out of the room, the trial court said:

All right. So Ms. Battle, I want to give you the
opportunity to talk to your attorney. And this is my
concern, all brought up by me:

Your negotiation—what I heard in court today was
that your negotiation for having your murder charge
amended was partially due to the fact that you were going
to provide truthful testimony here. I don’t know if you
can’t remember anything, but it certainly seems a little
strange to me that you could remember what you talked to
Detective Jacks about a couple hours ago, and what you
talked to the police about a couple years ago.

So if you don’t remember, go ahead and persist in
the kind of answers that you’re giving. I don’t know if the
State is going to reevaluate your case; all I know is—what I
heard is that part of your deal was premised on truthful
testimony. And I am concerned for you that the testimony,
as it’s coming in right now, may present a situation that the
State moves to withdraw your plea and resentence you, and
charge you with something completely different, like that
murder charge.

You know, if you don’t remember, you don’t
remember. But I think Attorney Voss indicated to me he
certainly wants the opportunity to talk to you about this.

….

All right. Attorney Lonski doesn’t know—
indicated that, at this point, he hasn’t done any research on
which way he’s leaning; it’s something he’s going to think
about. And of course, Attorney Flanagan doesn’t think I
should be interposing myself. But Ms. Battle, this is
nothing other than to protect you with the kind of testimony
you’re giving.

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No. 2021AP191-CR

¶4 The trial resumed after Battle spoke with her attorney. At that point,
Battle testified that she was afraid of someone named “Charlie” and that Charlie
had picked her and McCauley up after the shooting. She also identified McCauley
as the person who shot Ross, and she further testified that she saw McCauley
standing there holding a gun after the shots were fired and Ross’s car had driven
off. However, Battle also testified that “the plan” was not to shoot Ross. Instead,
the plan was for McCauley to “take” Ross’s money. In fact, Battle indicated “that
[McCauley] was going to demand Mr. Ross’s money, and Mr. Ross was going to
give it up[.]” On cross-examination, Battle further testified that she “knew about
the robbery.”

¶5 Ultimately, the jury found McCauley guilty of felony murder and
possession of a firearm by a felon. He was subsequently sentenced to a total of
fifty years of imprisonment, composed of thirty-five years of initial confinement
and fifteen years of extended supervision.3

¶6 McCauley filed a motion for postconviction relief in which he
argued that he was entitled to a new trial because the trial court “abandoned [its]
neutrality and became an advocate for the [S]tate” when it admonished Battle. In
the alternative, McCauley argued that he received ineffective assistance of counsel
if his trial counsel failed to “properly object” to the trial court inserting itself into
the trial.4

3
An additional count of possession of a firearm by a felon related to the firearm found in
McCauley’s possession at the time of his arrest was dismissed and read in for purposes of
sentencing.
4
McCauley has not pursued his claim of ineffective assistance of counsel on appeal.
The State similarly does not pursue any argument on appeal that McCauley’s trial counsel failed
to object.

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No. 2021AP191-CR

¶7 Without requesting a response from the State or holding a hearing,
the trial court denied McCauley’s motion saying:

The court wholly rejects the defendant’s bias claim.
There is no reasonable reading of the court’s comments as
evincing any sort of bias toward the State. Rather, the
totality of the record makes it clear that the procedure the
court followed was entirely appropriate under the
circumstances, particularly since it was revealed that Battle
was fearful and had been threatened by “Charlie.” The
defendant does not have a due process right to benefit from
third-party threats toward the State’s witnesses. In sum, the
court stands by its remarks during the trial and denies the
defendant’s motion for a new trial on these grounds.

In its written decision and order denying McCauley’s postconviction motion, the
trial court also acknowledged that McCauley’s trial counsel objected to the judge’s
interruption of Battle’s testimony when it stated that: “The court then
acknowledged that counsel for the defendant was objecting to the court
interjecting.” The trial court thus did not address McCauley’s alternative
argument for ineffective assistance of counsel and addressed the merits of
McCauley’s postconviction motion.

¶8 McCauley now appeals.

DISCUSSION

¶9 On appeal, McCauley argues that the trial court “abandoned its
neutrality” and violated his right to due process when it “admonished” Battle. He
also argues that there is insufficient evidence from which the jury could find that
he intended to rob Ross, which was one of the elements of his conviction for
felony murder. We disagree, and we address each of McCauley’s arguments in
detail below.

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No. 2021AP191-CR

I. Battle’s Testimony

¶10 In his first argument, McCauley argues that the trial judge violated
his right to due process when she interrupted Battle during her testimony. He
argues that the only interpretation of the judge’s interruption is that the judge was
acting as an advocate for the State by raising concerns about the truthfulness of
Battle’s testimony that overstepped the judge’s neutral role. McCauley asserts that
“the judge perceived that McCauley was benefitting from Battle’s uncooperative
testimony” and so, “without any motion from either party, the judge took it upon
herself to make sure that McCauley did not benefit.” In so doing, McCauley
contends that the judge “abandoned her neutrality” and “became the prosecutor,”
and that the judge called Battle a liar and admonished Battle in order to persuade
her to give testimony beneficial to the State. McCauley further argues that the
judge’s own explanation in the denial of his postconviction motion makes this
obvious when the judge stated, “The defendant does not have a due process right
to benefit from third-party threats toward the State’s witnesses.” We disagree with
McCauley.

¶11 “The right to an impartial judge is fundamental to our notion of due
process.” Miller v. Carroll, 2020 WI 56, ¶15, 392 Wis. 2d 49, 944 N.W.2d 542
(citation omitted). “We presume that a judge has acted fairly, impartially, and
without bias.” Id., ¶16. The party asserting judicial bias bears the burden of
overcoming the presumption by showing bias by a preponderance of the evidence.
Id. If the presumption is rebutted, the result is a due process violation, and such
an error is “structural and not subject to a harmless error analysis.” Id. “Whether
a circuit court’s partiality can be questioned is a matter of law that we review
independently.” State v. Goodson, 2009 WI App 107, ¶7, 320 Wis. 2d 166, 771
N.W.2d 385.

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No. 2021AP191-CR

¶12 In this case, we are confronted with an issue of objective bias.5 See
Miller, 392 Wis. 2d 49, ¶21. “Objective bias can exist in two situations:
(1) where there is an appearance of bias; and (2) where objective facts demonstrate
that a judge treated a party unfairly.” State v. Marcotte, 2020 WI App 28, ¶17,
392 Wis. 2d 183, 943 N.W.2d 911. “The appearance of partiality constitutes
objective bias when a reasonable person would conclude ‘that the average judge
could not be trusted to hold the balance nice, clear, and true under all the
circumstances.’” Id. (citation omitted). Where the appearance of bias “reveals a
great risk of actual bias, the presumption of impartiality is rebutted, and a due
process violation occurs.” Id. (citation omitted).

¶13 We conclude that McCauley has not overcome the presumption and
shown that the judge’s interruption of Battle’s testimony rises to the level of
objective bias. As previous cases instruct, “it is the exceptional case with
‘extreme facts’ which rises to the level of a ‘serious risk of actual bias.’” Miller,
392 Wis. 2d 49, ¶24 (citation omitted); see also State v. Carprue, 2004 WI 111,
¶¶63, 66, 274 Wis. 2d 656, 683 N.W.2d 31.

¶14 In Miller, our supreme court concluded that objective bias existed
where the judge, who was Facebook friends with the mother who filed the motion,
presided over a hotly contested two-day evidentiary hearing involving the sole
custody and physical placement of a child. Id., 392 Wis. 2d 49, ¶¶7, 25-35.
During the twenty-five days between the judge’s acceptance of the mother’s friend

5
A judge may also be subjectively biased. See State v. Gudgeon, 2006 WI App 143,
¶20, 295 Wis. 2d 189, 720 N.W.2d 114. Subjective bias is present when a judge has personal
doubts as to whether he or she can be impartial. Id. Because McCauley does not allege that the
judge was subjectively biased, we do not address that issue.

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No. 2021AP191-CR

request and his issuance of his written decision entirely in her favor, the mother
engaged with and reacted to at least twenty of the judge’s Facebook posts. Id., ¶8.
The majority of the mother’s reactions were “likes” to the judge’s posts involving
prayers and Bible verses he posted. Id. The court concluded that

[The mother] was allowed the opportunity to give [the
judge] additional information about herself and an extra
“remember me” almost [twenty-five] different times during
the time period when the matter was under advisement, all
unbeknownst to [the father]. By reacting to and engaging
with [the judge’s] posts, [the mother] was effectively
signaling to [the judge] that they were like-minded and, for
that reason, she was trustworthy. She was conveying to
him off-the-record information about her values, character,
and parental fitness—additional evidence [the father] did
not have the opportunity to rebut.

Id., ¶31. The court then concluded that “the extreme facts of this case rebut the
presumption of judicial impartiality and establish a due process violation.” Id.,
¶36.

¶15 In Marcotte, this court concluded that Marcotte had met his burden
to demonstrate objective bias based on the judge’s comments that indicated that he
had determined, before sentencing after Marcotte’s revocation of probation, that
Marcotte would be sentenced to prison if he did not succeed in drug court. Id.,
392 Wis. 2d 183, ¶1.6 This court noted that

[A]t various times before Marcotte’s sentencing after
revocation hearing, [the judge] communicated to Marcotte
that he would be sentenced to prison if he did not succeed
in drug court. In particular, [the judge] expressly told

6
This court also concluded that “a reasonable person would conclude there was a great
risk that [the judge’s] personal frustration with Marcotte’s failure in drug court would lead him to
impose a harsher sentence than he would have otherwise imposed had he not presided over the
drug court proceedings.” State v. Marcotte, 2020 WI App 28, ¶30, 392 Wis. 2d 183, 943 N.W.2d
911.

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No. 2021AP191-CR

Marcotte during one drug court hearing that if he was
discharged from the drug court program, he would “get
sentenced and … go to Dodge.” [The judge] also warned
Marcotte during his original sentencing hearing that if he
did not succeed in drug court, there would be “no mercy”
when Marcotte returned for sentencing after revocation.
[The judge] followed through on that promise at Marcotte’s
sentencing after revocation hearing, imposing a sentence
longer than those requested by both the State and the DOC.
Moreover, [the judge] stated during the sentencing after
revocation hearing that because Marcotte had failed in drug
court, he had “no choice” but to sentence him to prison.

Id., ¶19. The court then concluded that “[a] reasonable person would interpret
these comments to mean that [the judge] had decided long before Marcotte’s
sentencing after revocation hearing that he would impose a prison sentence if
Marcotte was terminated from drug court.” Id.

¶16 Here, we conclude that the judge’s interruption of Battle’s testimony
does not rise to the same level of extreme facts demonstrated by the cases
mentioned above. Importantly, the judge here was not the fact finder at
McCauley’s trial. Indeed, the jury—the ultimate fact finder at McCauley’s trial—
was absent from the courtroom during the judge’s interruption of Battle’s
testimony, and the jury was unaware of the judge’s comments and Battle’s
conversation with her attorney. The judge also did not threaten Battle that the
State would revoke the plea agreement, but only indicated, out of concern for
Battle, that it was something that the State might consider if Battle continued to
testify in a seemingly uncooperative manner. See Carprue, 274 Wis. 2d 656, ¶41
(“While the court cannot function as a partisan, it may take necessary steps to aid
in the discovery of truth.” (citation omitted)); see also United States v. Smith, 997
F.2d 674, 680 (10th Cir. 1993) (“[A]s a general rule a court ‘has the discretion to
warn a witness about the possibility of incriminating’ himself or herself.” (citation
omitted)); United States v. Arthur, 949 F.2d 211, 215 (6th Cir. 1991) (“The

9
No. 2021AP191-CR

district court has the discretion to warn a witness about the possibility of
incriminating himself.”). After explaining the interruption, the judge then also
allowed Battle time to speak with her attorney and did not continue the trial until
Battle’s attorney was satisfied that he had sufficient time to consult with Battle.
Therefore, we reject McCauley’s argument.

¶17 In reaching this conclusion, we emphasize that “[w]hile prudence
would have counseled less assertive conduct from the circuit judge, the law does
not demand a reversal of [McCauley’s] conviction.” See Carprue, 274 Wis. 2d
656, ¶1. Thus, “[w]hile the circuit judge’s actions were inadvisable, the defendant
has failed to demonstrate he is entitled to reversal of his conviction under any
applicable legal theory.” Id., ¶3.

II. Sufficiency of the Evidence

¶18 McCauley additionally argues that the State presented insufficient
evidence to prove that McCauley intended to rob Ross and thus, the State
presented insufficient evidence to support his conviction for felony murder.
Specifically, McCauley argues that the State presented insufficient evidence of his
intent because Battle testified that McCauley intended to “take” Ross’s money.
He then argues that “take” does not mean that McCauley intended to “steal”
Ross’s money.

¶19 In addressing McCauley’s argument, we first note that McCauley
failed to refute the State’s argument that the evidence was sufficient to support his
conviction for felony murder in his reply brief, and therefore, we conclude that he
has conceded any argument regarding the sufficiency of the evidence. See United
Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (failing to refute a proposition asserted in a response brief may be

10
No. 2021AP191-CR

taken as a concession). Nevertheless, in the interest of being complete, we address
the merits of McCauley’s arguments. After considering his arguments and the
State’s arguments, we agree with the State’s arguments. Thus, we conclude that
the evidence introduced at trial was sufficient to support the jury’s verdict.

¶20 A challenge to the sufficiency of the evidence to support a criminal
conviction is a question of law that we review de novo. State v. Smith, 2012 WI
91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. State v. Poellinger establishes the
standards that we apply when reviewing the sufficiency of the evidence to support
a conviction as follows:

[We] may not substitute [our] judgment for that of the trier
of fact unless the evidence, viewed most favorably to the
[S]tate and the conviction, is so lacking in probative value
and force that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt. If any possibility
exists that the trier of fact could have drawn the appropriate
inferences from the evidence adduced at trial to find the
requisite guilt, an appellate court may not overturn a verdict
even if it believes that the trier of fact should not have
found guilt based on the evidence before it.

Id., 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) (citations omitted).
Additionally,

[i]n reviewing the sufficiency of circumstantial evidence to
support a conviction, [we] need not concern [ourselves] in
any way with evidence which might support other theories
of the crime. [We] need only decide whether the theory of
guilt accepted by the trier of fact is supported by sufficient
evidence to sustain the verdict rendered.

Id. at 507-08.

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No. 2021AP191-CR

¶21 As the State correctly asserts in its argument, McCauley’s argument
is nothing but a dispute with the inference the jury drew from the evidence
adduced at trial as to the element of intent.7 McCauley asserts that Battle testified
that McCauley said he was going to “take” money from Ross. He then argues that
“taking” is not necessarily stealing and that here there is a wholly reasonable
explanation why McCauley would be taking money from Ross—because Ross
was going on a prostitution date with Battle. In other words, McCauley is arguing
that the evidence was insufficient to sustain his conviction because there is a
different inference the jury could have drawn from the fact that he planned to take
money from Ross that was consistent with his innocence.

¶22 By contrast, the State argues that it was for the jury to determine if
the fact that McCauley decided to arm himself with a gun and go outside to take
money from Ross sufficiently showed an intent to steal Ross’s money forcibly by
threatening him with the gun. It further argues that the jury could rationally
conclude that McCauley arming himself with the gun, saying he was going to take
Ross’s money, and attempting to order Ross out of the car proved that McCauley
intended to commit armed robbery.

¶23 As noted, we agree with the State. We conclude that the jury clearly
rejected McCauley’s inference when it found him guilty and instead chose to infer,
taking into account the circumstances under which Ross met with Battle that night,
that “take” meant that McCauley intended to “steal” Ross’s money. This is a

7
As relevant to McCauley’s argument regarding intent, McCauley’s charge of felony
murder, with the underlying offense of attempted armed robbery, required that the State prove
that McCauley attempted to take Ross’s property with the intent to steal it. See WIS JI—
CRIMINAL 1480.

12
No. 2021AP191-CR

reasonable inference that the jury was entitled to draw from Battle’s testimony.
See Poellinger, 153 Wis. 2d at 506 (“In viewing evidence which could support
contrary inferences, the trier of fact is free to choose among conflicting inferences
of the evidence and may, within the bounds of reason, reject that inference which
is consistent with the innocence of the accused.”). We, therefore, will not upset
the jury’s chosen inference, and we conclude that the evidence was sufficient to
support the jury’s verdict.

CONCLUSION

¶24 In sum, we reject McCauley’s arguments for a new trial. McCauley
has failed to demonstrate that the judge’s interruption of Battle’s testimony
violated his right to due process, and McCauley has both conceded that the
evidence was sufficient and also failed to demonstrate that the State presented
insufficient evidence of McCauley’s intent to steal at trial. Accordingly, we
affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

13