State v. Dominque I. Knight

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 15, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP542-CR Cir. Ct. No. 2017CF626

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DOMINQUE I. KNIGHT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for Racine
County: MARK F. NIELSEN, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2022AP542-CR

¶1 PER CURIAM. Dominque I. Knight appeals from a judgment
convicting him of first-degree intentional homicide and of possession of a firearm
by a convicted felon. Knight also appeals from circuit court orders denying his two
postconviction motions seeking a new trial—the first alleged ineffective assistance
of trial counsel and the second alleged newly discovered evidence. We conclude
Knight is not entitled to relief on any of his claims. Accordingly, we affirm.

BACKGROUND

¶2 Knight was convicted of first-degree intentional homicide by use of a
dangerous weapon and being a felon in possession of a firearm after a jury found
that Knight intentionally shot and killed the victim, Harry Canady. Evidence was
presented at trial that on the night that Harry1 was killed, police located an
individual, Donte Shannon, running away from the scene of the homicide. Shannon
told police that he had driven Knight to the Canady house and that Shannon saw
Knight shoot Harry on the Canady’s front porch that night. Shannon passed away
before the trial and was thereby unable to testify against Knight.

¶3 Before the trial, the State brought a motion to present evidence of an
ongoing dispute over drugs and money between Knight and members of the Canady
family. As relevant to this appeal, the State sought to present the following
evidence:

(1) A few weeks prior to Harry’s murder, Knight and an individual named
Roger Gardner gave Harry’s brother, David Canady, $1,000 to buy them
drugs. David was later arrested. David’s uncle, Larry Canady, posted

1
Several individuals with the surname “Canady” are relevant to the facts in this appeal.
We generally refer to them by their first names to avoid potential confusion.

2
No. 2022AP542-CR

$1,000 cash to bond David out. Harry provided Larry with $1,000 cash
for David’s bond, and Knight and Gardner never received the drugs they
sought to buy.

(2) A couple days after the incidents described above, three black males came
to Larry’s home looking for David and Harry. At least one of the
individuals was armed, and all three actually may have been carrying
firearms.

The State argued the evidence it sought to admit (“the dispute evidence”) was
admissible as panorama evidence demonstrating Knight’s “motive and intent” to
kill Harry and/or as other acts evidence establishing “the context of the relationship,
knowledge, absence of mistake or accident.” The State submitted that the dispute
evidence was necessary to paint a complete picture for the jury of the circumstances
surrounding the homicide.

¶4 Knight disagreed. He argued the dispute evidence was more
prejudicial than probative. The circuit court agreed with the State, observing that
regardless of whether it was considered panorama evidence or other acts evidence,
the dispute evidence was admissible at trial because it went to motive and intent and
was corroborative evidence of Knight’s role in Harry’s murder.

¶5 At trial, the State presented evidence in support of Knight’s guilt,
including the following: (1) the dispute evidence establishing that Knight had a
motive to kill Harry after Harry’s brother David took $1,000 from Knight for drugs
but never purchased the drugs for Knight, presumably because Harry had provided
the $1,000 as David’s bail money; (2) evidence that Knight called one of his cousins
on the day of the shooting and warned the cousin to keep his son away from Harry’s
residence that day; and (3) testimony from jailhouse informant Jonathan Sparks,

3
No. 2022AP542-CR

who was housed in a jail pod near Knight after Harry’s murder, that Knight had
confessed to killing Harry. After three days of trial, the jury found Knight guilty on
both charges against him.

¶6 For the first-degree intentional homicide, the circuit court sentenced
Knight to life imprisonment with eligibility for release to extended supervision in
thirty-five years. The court also imposed four years of initial confinement and four
years of extended supervision for Knight’s conviction as a felon in possession of a
firearm.

¶7 Knight filed a motion for postconviction relief in the circuit court
asserting that trial counsel was ineffective in four ways: (1) failing to move for a
mistrial or make a motion to strike after the State failed to prove essential facts on
which admission of the panorama or other acts evidence was predicated; (2) failing
to call Roger Gardner as a defense witness;2 (3) failing to obtain or present jail
records undermining Jonathan Sparks’ credibility; and (4) failing to object to a
police investigator’s testimony allegedly vouching for a Sparks’ credibility.

¶8 Following a Machner hearing,3 the circuit court denied Knight’s
postconviction motion. The court rejected Knight’s claim that his trial counsel
should have objected when the State allegedly failed to establish critical facts
pertaining to the admissibility of the dispute evidence discussed above. The court
determined that its initial analysis of the admissibility of the dispute evidence was
accurate. The court further found that the State’s questions at trial did not violate
the court’s pretrial ruling as to its admissibility. Regarding Knight’s claim that trial

2
During the hearing on its postconviction motion, defense counsel withdrew its objection
to trial counsel’s failure to call Gardner as a defense witness.
3
See State v. Machner, 101 Wis. 2d 79, 303 N.W.2d 633 (1981).

4
No. 2022AP542-CR

counsel was deficient for failing to obtain additional jail records to prove that Sparks
was lying, the court found the witness testimony to be “credible” and “detailed” on
this topic. It found that jail records indicated Sparks and Knight were indeed housed
at the jail during overlapping periods and rejected Knight’s claims of deficient
performance on this ground. Finally, the court rejected Knight’s claim that trial
counsel was ineffective in failing to object to the police investigator’s testimony
purportedly vouching for Sparks’ credibility. It found trial counsel’s decision not
to object and “make a big deal of it” in front of the jury to be a “strategic” decision
and found that perhaps the decision was “even right.”

¶9 Knight then filed a supplemental postconviction motion in the circuit
court. Knight argued that he had newly discovered evidence that entitled him to a
new trial. Specifically, Knight asserted that he received a recorded jail call after his
trial from an individual named Donelle Jones confronting Sparks about allegedly
lying during his testimony in Knight’s trial. Knight argued that in this call, Sparks
“tacitly–if not expressly–admits that he lied.” Knight also asserted that Sparks
confessed to another inmate, Antrone Lewis, that Sparks had lied during Knight’s
trial.

¶10 The circuit court held an evidentiary hearing where Jones, Lewis, and
Sparks all testified. The court subsequently entered a written order denying Knight
relief. In its decision, the court noted the State conceded the evidence was
discovered after conviction and Knight was not negligent in seeking the evidence.
The dispute, the court recognized, thus came down to whether the evidence was
material to an issue at trial and, if so, whether it was merely cumulative. With
respect to Jones’ recorded phone call, the court determined that what Sparks said
during the call did not constitute an “admission” by Sparks, and that Knight failed
to prove that it constituted newly discovered evidence because it was not material.

5
No. 2022AP542-CR

Regarding Sparks’ supposed confession to Lewis, the court observed that “[n]ot one
other witness has come forward to corroborate [Lewis’] account[,]” and found
Lewis to be not credible. The court thus concluded that Knight “failed to prove by
evidence that is clear, satisfactory and convincing that there is [n]ewly [d]iscovered
[e]vidence in this case,” and it denied his supplemental postconviction motion.
Knight appeals.

DISCUSSION

¶11 Knight raises three issues on appeal. First, he argues that the circuit
court erroneously exercised its discretion in granting the State’s motion to introduce
the dispute evidence at trial as panorama evidence or other acts evidence. Next, he
argues that the court erred in denying his initial postconviction motion for a new
trial because trial counsel provided ineffective assistance. Finally, he argues that
the court erroneously exercised its discretion in denying his supplemental
postconviction motion for a new trial based on newly discovered evidence. We
address each issue in turn below.

Panorama Evidence

¶12 “The question of admissibility of evidence generally lies within the
trial court’s discretion.” State v. Dukes, 2007 WI App 175, ¶26, 303 Wis. 2d 208,
736 N.W.2d 515. A circuit court properly exercises its discretion if it “examined
the relevant facts, applied a proper standard of law, used a demonstrated rational
process[,] and reached a conclusion that a reasonable judge could reach.” State v.
Marinez, 2011 WI 12, ¶17, 331 Wis. 2d 568, 797 N.W.2d 399 (citation omitted).

¶13 WISCONSIN STAT. § 904.04(2) provides that evidence of other crimes,
wrongs, or acts is admissible to prove intent, but not admissible to prove the

6
No. 2022AP542-CR

character of an individual in an effort to show action in conformity therewith. If the
evidence is relevant and admissible under § 904.04(2), the circuit court must then
decide whether the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury,
pursuant to WIS. STAT. § 904.03. State v. Kuntz, 160 Wis. 2d 722, 746, 467 N.W.2d
531 (1991). Section 904.03 provides: “Although relevant, evidence 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.”

¶14 This court has previously recognized that “‘simply because an act can
be factually classified as “different”—in time, place and, perhaps, manner than the
act complained of—that different act is not necessarily ‘other acts’ evidence in the
eyes of the law.’” Dukes, 303 Wis. 2d 208, ¶28 (citation omitted). To that end,
evidence is not considered to be other acts evidence “if it is part of the panorama of
evidence needed to completely describe the crime that occurred and is thereby
inextricably intertwined with the crime.” Id.

¶15 Knight argues that the circuit court erroneously exercised its
discretion in allowing the dispute evidence, which, as stated above, was evidence
related to the ongoing dispute between Knight and the Canadys over drugs and
money. Because Knight asserts that the probative value of the dispute evidence was
outweighed by its prejudicial effect, he “submits that no reasonable judge, using a
demonstrative rational process, would have concluded that the other acts evidence
was admissible.” The State argues that the court properly exercised its discretion in
admitting the evidence under both other-acts and panorama-evidence analyses.

7
No. 2022AP542-CR

¶16 We agree with the State—evidence surrounding the ongoing dispute
between Knight and the Canadys was all “part of the panorama of evidence needed
to completely describe the crime that occurred and is ... inextricably intertwined
with the crime.” See id. “The evidence involved the relationship between the
principal actors,” State v. Jensen, 2011 WI App 3, ¶85, 331 Wis. 2d 440, 794
N.W.2d 482 (2010), and explained the context of Knight’s crimes in terms of the
ongoing dispute and strained relationship between Knight and the Canady family.

¶17 Evidence that is relevant is generally admissible at trial. State v.
Richardson, 210 Wis. 2d 694, 705, 563 N.W.2d 899 (1997); see also WIS. STAT.
§ 904.02. “Relevant evidence is evidence that has any tendency to make the
existence of a fact that is of consequence to the determination of the action more or
less probable.” Richardson, 210 Wis. 2d at 705; see also WIS. STAT. § 904.01. In
order to prove Knight guilty of first-degree intentional homicide, the State needed
to prove that Knight caused Harry’s death. See WIS. STAT. § 940.01(1)(a); WIS JI—
CRIMINAL 1010. The State also needed to prove that Knight intended to kill Harry.
See id. “Intent to kill must be found, if found at all, from the defendant's acts, words,
and statements, if any, and from all the facts and circumstances in this case bearing
upon intent.” WIS JI—CRIMINAL 1010. Without the background information about
the dispute related to the drugs and money, as the circuit court explained, “the jury
[would have been] left to wonder why [Knight] would shoot down this man for
apparently no reason.” Although it was undoubtedly prejudicial, it was necessary

8
No. 2022AP542-CR

panorama evidence, without which the State would likely have been unable to
establish the intent element of the first-degree homicide charge.4

¶18 The dispute evidence also was not so “inflammatory” as to require its
exclusion. See WIS. STAT. § 904.03 (providing that “[a]lthough relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice”); see also State v. Payano, 2009 WI 86, ¶80, 320 Wis. 2d 348, 768
N.W.2d 832 (noting “[t]he term ‘substantially’ indicates that if the probative value
is close or equal to its unfair prejudicial effect, the evidence must be admitted.”
(citation omitted)).

¶19 All evidence is subject to relevancy and prejudice analyses. WIS.
STAT. §§ 904.01, 904.03. Here, the circuit court assessed the relevancy and
prejudicial effect of this evidence when it decided to allow it at trial. The court did
not erroneously exercise its discretion in admitting the dispute evidence as
panorama evidence. See Jensen, 331 Wis. 2d 440, ¶75.

4
Knight argues in his reply brief that the circuit court erroneously exercised its discretion
in allowing the dispute evidence because “the State failed to make any link between the other acts
evidence involving David and Knight’s intent or motive to kill Harry.” Knight asserts that the
evidence would have established a motive or intent to kill David, but did not establish any motive
or intent as relates to Harry. Thus, he argues, the evidence was not probative or relevant and should
have been excluded. We disagree.

For reasons discussed above, we conclude the evidence was relevant to provide context for
the jury, and any argument that such testimony is not probative goes to the weight of that evidence,
not its admissibility. As such, it was for the jury to determine the probative nature of the evidence
of the history of Knight’s relationship with the Canadys. The jury heard testimony regarding the
dispute between Knight and David Canady, and it determined that the testimony provided sufficient
evidence of Knight’s motive and intent to kill David’s brother Harry. We will not set aside factual
findings unless clearly erroneous, and we give due regard to the opportunity of the fact-finder—in
this case, the jury—to judge witness credibility. WIS. STAT. § 805.17(2).

9
No. 2022AP542-CR

Ineffective Assistance of Trial Counsel

¶20 Knight argues on appeal that his trial counsel was ineffective in the
following three ways: (1) failing to move for a mistrial or make a motion to strike
after the State failed to prove essential facts on which the other acts evidence
admission was predicated; (2) failing to obtain or present jail records undermining
Sparks’ credibility; and (3) failing to object to the police investigator’s testimony
purportedly vouching for Sparks’ credibility. After hearing evidence at the
Machner hearing, the circuit court concluded otherwise. The court specifically
found that Knight failed to establish deficient performance by counsel and,
therefore, failed to establish ineffective assistance of counsel. As we now explain,
we agree and conclude that the court did not err in determining that trial counsel’s
performance was not deficient.

¶21 To establish ineffective assistance of counsel, Knight must make a
threshold showing that, when considering all the circumstances, his counsel
performed deficiently by providing representation that fell below an objective
standard of reasonableness. See State v. Jenkins, 2014 WI 59, ¶36, 355 Wis. 2d
180, 848 N.W.2d 786. Our review is highly deferential to the reasonableness of
counsel's performance, and we make every effort to reconstruct the circumstances
and evaluate counsel's conduct from his or her perspective at the time of the relevant
decision. See id.

¶22 Applying these standards, we conclude that the circuit court did not
err in finding that trial counsel was not deficient in deciding not to object to the
panorama evidence as it came in at trial. Trial counsel testified that he did not object
because the evidence did not come in improperly at trial. Moreover, trial counsel
explained, the court had already ruled on its admissibility. In its ruling on the

10
No. 2022AP542-CR

postconviction motion, the court made an explicit finding that the State’s
questioning at trial did not violate its pretrial ruling, meaning that any objection by
defense counsel to the panorama evidence would have been overruled.

¶23 Similarly, we uphold the circuit court’s ruling that trial counsel was
not deficient for failing to present records to undermine Sparks’ testimony regarding
when he and Knight were housed in various jail pods. There was no deficiency in
failing to push the issue during Sparks’ testimony, particularly considering trial
counsel’s strategy of suggesting to the jury that Sparks had access to Knight’s
discovery materials before Sparks testified against Knight and stressing to the jury
that Sparks “couldn’t be believed.” In trial counsel’s analysis, presenting the
housing records at trial would have had no benefit in light of the strategic decision
as to how to undermine Sparks’ testimony. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland v. Washington, 466 U.S. 668, 690 (1984).

¶24 Moreover, the circuit court “found the witness [Sparks] to be credible
on” the challenged topic and found that it was irrelevant to the issues in the case
whether Sparks was incorrect about specific dates. Counsel’s strategy to focus on
Sparks’ access to Knight’s discovery and Sparks’ credibility when he was seeking
a better deal for his own homicide case does not fall below an objective standard of
reasonableness. See id.; see also Jenkins, 355 Wis. 2d 180, ¶36.

¶25 Finally, it was not deficient performance for counsel to fail to object
to the police investigator’s testimony allegedly vouching for Sparks’ credibility.
This, too, was a strategic decision by trial counsel. Counsel explained at the
postconviction hearing why he did not object to this testimony: “in the context it
was said, I obviously didn’t think it was vouching. I don’t have that context in front

11
No. 2022AP542-CR

of me but if I felt that way, I obviously would have done that.” Trial counsel also
testified that he did not want to “highlight” the investigator’s testimony that he was
able to corroborate Sparks’ information. As did the circuit court, we conclude that
counsel’s strategy in not wanting to highlight the investigator’s testimony does not
fall below an objective standard of reasonableness. See Jenkins, 355 Wis. 2d 180,
¶36. Because trial counsel did not perform deficiently, Knight did not receive
ineffective assistance of counsel entitling him to a new trial.

Newly Discovered Evidence

¶26 Finally, Knight argues that the circuit court erroneously exercised its
discretion in failing to order a new trial based on what Knight asserts is newly
discovered evidence. We disagree.

¶27 A defendant seeking a new trial on the basis of newly discovered
evidence must establish, by clear and convincing evidence, that: (1) the evidence
was discovered after conviction; (2) the defendant was not negligent in seeking to
discover it; (3) the evidence is material to an issue in the case; and (4) the evidence
is not merely cumulative. State v. Vollbrecht, 2012 WI App 90, ¶18, 344 Wis. 2d
69, 820 N.W.2d 443. We review a decision on whether to grant a new trial based
on newly discovered evidence for an erroneous exercise of discretion. Id.

¶28 Knight asks us to conclude that he is entitled to a new trial based on
the recorded jail phone call between Sparks and Donelle Jones and the supposed
conversation that Sparks had with Antrone Lewis. As it did before the circuit court,
the State concedes that both Jones’ phone call and Lewis’ conversation were
discovered after Knight’s conviction and Knight was not negligent in seeking the
evidence. However, the State takes issue with Knight’s assertion that the evidence
constitutes newly discovered evidence under the law because the State argues that

12
No. 2022AP542-CR

it is not material to any issue in the case. As we now explain, we agree with the
State.

¶29 Simply put, Jones’ phone call is not material because it is not credible
evidence that Sparks lied during the trial. Contrary to Knight’s assertion, Sparks
never admitted in the phone call that he had lied. Without such an admission by
Sparks, the phone call contains no credible or material information. To that end, the
circuit court found that “the actual words used by Sparks are brief and general in
nature, agreeable to anything being suggested by the caller. It is the caller who is
stating that Sparks lied.” The court further observed that “[a]ll Sparks states is his
general willingness to try to mitigate his sin of testifying against another inmate and
taking him away from his family.” Thus, “[t]he phone call does not constitute an
admission. It could be an admission, but it could also be exactly what Sparks
present[s] it as.” The court’s finding that this evidence is not material is not clearly
erroneous and, therefore, it is not newly discovered evidence warranting a new trial.

¶30 Regarding Sparks’ alleged conversation with Lewis, we also conclude
that the circuit court’s decision is not clearly erroneous. The court found Lewis’
testimony was not credible, and incredible evidence is not relevant or material. As
the court determined, the problem with Lewis’ testimony “is that it is
uncorroborated in the face of a denial by the witness Sparks.” In order to believe
Lewis, the court “would have to believe that no one in that pod full of inmates nor
the defendant himself thought to raise the matter of the State’s witness admitting to
perjury.” As the court pointed out, “Knight certainly had every reason to bring it
up as soon as he learned of it.” However, as no other witness came forward to
corroborate Lewis’ account, the court found Lewis’ testimony to be not credible.
Consequently, the court’s conclusion that “it is not material to a determination of
the issues in this case” is not clearly erroneous.

13
No. 2022AP542-CR

¶31 Because this evidence is not material to the issue of Knight’s guilt, it
does not constitute newly discovered evidence warranting a new trial. See
Vollbrecht, 344 Wis. 2d 69, ¶18. We therefore conclude that the circuit court did
not erroneously exercise its discretion in denying Knight’s supplemental
postconviction motion.

CONCLUSION

¶32 For the foregoing reasons, we uphold the judgment of conviction and
the circuit court orders denying Knight’s postconviction motions for a new trial. 5

By the Court.—Judgment and orders affirmed.

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

5
To the extent that we do not fully address an argument raised by the parties, we note that
we need not address every argument when another one is dispositive of an issue. See Turner v.
Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (the court of appeals need
not address all issues if one issue raised by the parties is dispositive).

14