State v. Larry Reed, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 23, 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. 2018AP1597-CR Cir. Ct. No. 2016CF3185

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LARRY REED, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. KREMERS and MARY M. KUHNMUENCH,
Judges. Judgment modified and, as modified, affirmed; order affirmed.

Before Brash, P.J., Kessler and Brennan, 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. 2018AP1597-CR

¶1 PER CURIAM. Larry Reed, Jr., appeals from a judgment, entered
upon a jury’s verdicts, convicting him on one count of arson and one count of
first-degree recklessly endangering safety. Reed also appeals from an order
denying his postconviction motion without a hearing. Reed contends that trial
counsel was ineffective in three ways. We conclude Reed has failed to sufficiently
demonstrate ineffective assistance, so we affirm the order. We note two minor
scrivener’s errors in the judgment, however, so we order those corrected, but, upon
that modification, the judgment is also affirmed.

BACKGROUND

¶2 On July 10, 2016, police were dispatched to a house fire in
Milwaukee. Firefighters were able to successfully extinguish a fire in the upper
unit of a duplex. According to a statement given to police by M.W., she had
gotten into an argument with her boyfriend, Reed, who made threats against her.
He piled clothes onto their bed, doused the clothes with lighter fluid, lit a roll of
toilet paper on fire using the stove, and tossed the roll onto the bed, igniting the
clothes while pushing M.W. down. Reed continued to add lighter fluid to the bed
and to the floor. M.W. was able to get out of the house. She believed that Reed
left the scene in her car.

¶3 Reed was charged with one count of arson of a building as a
domestic abuse repeater and one count of first-degree recklessly endangering
safety as a domestic abuse repeater with domestic violence assessments. During
trial, the State dismissed the penalty enhancers. Reed did not testify. The theory
of defense was that Reed did not start the fire. The jury convicted Reed on both
counts. The trial court sentenced him to eighteen years’ initial confinement and

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ten years’ extended supervision for arson, plus a concurrent six years’ initial
confinement and five years’ extended supervision for endangering safety.1

¶4 Reed filed a postconviction motion in which he alleged that trial
counsel had been ineffective by: (1) failing to call M.W.’s mother, K.S., to testify;
(2) failing to attack M.W.’s credibility through inconsistencies in her statements;
and (3) failing to stress the inconsistencies in the testimony of J.W., M.W.’s
eleven-year-old son. Reed also asserted that the combined effect of these errors
prejudiced him. The circuit court denied the motion without a hearing, noting
“that the claimed inconsistences are entirely minimal and wholly insignificant in
the big scheme of what occurred.” Reed appeals.

DISCUSSION

¶5 “A hearing on a postconviction motion is required only when the
movant states sufficient material facts that, if true, would entitle the defendant to
relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433.
Whether the motion alleges such facts is a question of law. See id., ¶9. If the
motion raises sufficient material facts, the circuit court must hold a hearing. See
id. If the motion does not raise sufficient material facts, if the motion presents
only conclusory allegations, or if the record conclusively shows the defendant is
not entitled to relief, then the decision to grant or deny a hearing is left to the
circuit court’s discretion. See id.

1
The Honorable Jeffrey A. Kremers presided at trial and imposed sentence. We refer to
him as the trial court. The Honorable Mary M. Kuhnmuench reviewed and denied the
postconviction motion. We refer to her as the circuit court.

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No. 2018AP1597-CR

¶6 The circuit court has the discretion to deny “even a properly pled
motion … without holding an evidentiary hearing if the record conclusively
demonstrates that the defendant is not entitled to relief.” See State v. Sulla, 2016
WI 46, ¶30, 369 Wis. 2d 225, 880 N.W.2d 659. “We review a circuit court’s
discretionary decisions under the deferential erroneous exercise of discretion
standard.” Id., ¶23 (citation omitted).

¶7 The requirements for showing ineffective assistance of counsel are
well established. A defendant must show that counsel’s performance was
deficient and that the deficiency prejudiced the defense. See State v. Balliette,
2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334. “Whether counsel was
ineffective is a mixed question of fact and law.” Id., ¶19. The defendant must
show both elements, and we need not address both if the defendant fails to make a
sufficient showing on one of them. See State v. Maloney, 2005 WI 74, ¶14, 281
Wis. 2d 595, 698 N.W.2d 583.

I. The Failure to Call K.S. as a Witness

¶8 “Failure to call a potential witness may constitute deficient
performance.” State v. Jenkins, 2014 WI 59, ¶41, 355 Wis. 2d 180, 848 N.W.2d
786. Counsel’s performance is deficient if it “fell below the objective standard of
reasonably effective assistance.” See id., ¶40. If deficient performance is
established, the defendant must also demonstrate prejudice—that is, “the
defendant must show that, absent defense trial counsel’s errors, there was a
reasonable probability of a different result.” See id., ¶49.

¶9 Reed first contends that counsel should have called M.W.’s mother,
K.S., to testify. He contends that “[t]heir versions of events differed significantly,
and had K.S. testified, it would have cast doubt on M.W.’s credibility.” Reed

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No. 2018AP1597-CR

asserts trial counsel should have known this from the police reports. According to
Reed:

M.W. and K.S. have remarkably different versions
of what happened that day. According to M.W.’s version
to police, she was the only person in the apartment with
Mr. Reed, while K.S. says she was there the whole time.
M.W. did testify that “they” came upstairs to see what was
going on after she called out that Mr. Reed had set the
house on fire, but that does not appear in police reports.
She later testified that “they” were there when the place
was set on fire. Therefore, her story changed several times,
while K.S. stated that she saw the fire being set. In M.W.’s
version, he sprayed lighter fluid on the bed before lighting
the toilet paper roll on fire. In K.S.’s version, he sprayed
lighter fluid on the bed after lighting the toilet paper roll on
fire. M.W. only saw Mr. Reed put lighter fluid in the
bedroom, while K.S. argues that he also put it in the dining
room. M.W. states that Mr. Reed slapped her, while K.S.
states that she heard a fist strike multiple times.

¶10 We agree with the circuit court that any inconsistences between
M.W.’s and K.S.’s reports are insignificant. M.W. told police that everyone—
including her mother and son—was at home but on the porch during the incident.
K.S. told police she was on the porch and heard M.W. and Reed fighting before
M.W. yelled for her to call police. K.S.’s statement did not say she saw the fire
being set but, rather, says that she ran upstairs and saw the bedroom on fire. Both
M.W. and K.S. reported to police that they saw Reed light a roll of toilet paper.
While K.S. only saw Reed add lighter fluid after igniting the toilet paper, M.W.
told police that Reed squirted the lighter fluid both before and after igniting the
roll. Both women reported an assault on M.W., though K.S. only heard it, and
both women noted that Reed fled the home.

¶11 “A failure to call a key witness … does not always necessarily
constitute deficient performance.” Jenkins, 355 Wis. 2d 180, ¶45. While Reed
contends that, had the jury heard K.S.’s testimony, it would have found him not

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No. 2018AP1597-CR

guilty “due to the inconsistent version of events between witnesses as they tried to
come up with a cover story so M.W. wouldn’t get in trouble for starting the fire,”
K.S.’s potential testimony is largely corroborative of M.W.’s version of events.
Thus, we are not persuaded that it was deficient of counsel to call a second witness
who would have largely supported the first witness on key elements and, even if it
was deficient, we further discern no prejudice from the failure to call K.S.2

II. The Failure to Stress Inconsistencies in M.W.’s Testimony

¶12 Reed next complains that trial counsel should have better attacked
M.W.’s credibility through her inconsistent statements:

M.W.’s version of events changed from the police
reports to her testimony. She told police that her family
had gone outside after the argument and never mentioned
any of them being in the apartment after that point; she
never said they were in the apartment while the fire was
being lit or after it had already been set on fire. She then
testified that “they” came upstairs to see what was going on
after she called out that Mr. Reed had set the house on fire.
On cross-examination, she testified that “my mom and my
son, they seen him start the fire; they seen him continually
try to keep it going, yes, they did see it. They came in the
room, he pushed my mom, pushed my son.” On redirect,
she testified that it was just her and Mr. Reed when the fire
started and that her mother and son came back upstairs after
the fire started.

Further, she told police that Mr. Reed slapped her
chin. On redirect, she testified that her mom carried her
outside; “I don’t know if I passed out or Mr. Reed kicked
me or something like that, I’m not sure.” She also testified
that Mr. Reed pushed her mom and son, which she never
mentioned to police.

2
Moreover, there is no evidence to suggest that M.W. started the fire, so it is purely
speculative to assert the jury would have acquitted Reed based on minor discrepancies between
M.W.’s and K.S.’s statements.

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No. 2018AP1597-CR

¶13 As the circuit court stated, M.W.’s testimony was “fairly consistent
with what she told police.” She told police, and also testified, that she watched
Reed start the fire, that he sprayed the clothes on the bed with lighter fluid, that he
lit a roll of toilet paper on fire and tossed it on the bed, and that Reed fled the
scene.3 Those are the key questions that go to Reed’s guilt on both the arson and
the reckless endangerment charge, and M.W. was clear on those points. Like the
circuit court, we discern no prejudice from trial counsel’s failure to stress minor
inconsistencies or omissions in the details M.W. provided about the whereabouts
of the others and Reed’s physical aggression towards M.W. and her family.

III. Failure to Stress “Inconsistencies” in J.W.’s Testimony

¶14 Reed also contends that trial counsel should have pointed out
“inconsistences” in testimony from J.W., M.W.’s eleven-year-old son:

[J.W.] testified that he saw Mr. Reed acting like he was
peeing fluid on his mom’s bed and trying to put some tissue
on the bed. He also testified that Mr. Reed ripped his
mother’s shirt, pushed her on the floor, and started
thumping her head on the floor; when he tried to stop Mr.
Reed, Mr. Reed hit his head on the floor. He then testified
that his grandma, K.S., tried to stop him and her hair got lit
on fire. His grandma had to help [his] mom out of the
house because she was knocked out.

M.W. never testified that Mr. Reed ripped her shirt
or started thumping her head on the floor. Nor is there any
evidence in the police reports that M.W. had a torn shirt
when the police arrived. There is also not any evidence
that K.S.’s hair got lit on fire; had the trial attorney
subpoenaed K.S. and called her as a witness, she would
have testified to that fact because it is inconceivable that
that would have happened and yet she didn’t tell the police
about it.

3
Additionally, we note that though M.W. never told police that Reed pushed K.S. or
J.W., K.S. did tell police that Reed pushed her.

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No. 2018AP1597-CR

Reed notes that “J.W.’s version of events was much more violent than M.W.’s
version, but there is nothing to back up his version of events and he never told
police any of it.”

¶15 We note that J.W. apparently did not give any statement to police. It
is not entirely evident whether the “inconsistencies” about which Reed complains
are internal inconsistencies in J.W.’s testimony or inconsistencies with his
mother’s testimony. The State, for its part, suggests that Reed is arguing less
about whether J.W.’s testimony contains inconsistencies and more about whether
J.W.’s testimony is corroborated.

¶16 Regardless, J.W., like his mother, testified that Reed lit toilet paper
on fire and sprayed lighter fluid in the flames.4 M.W. had testified that Reed
pushed and slapped her; this is consistent with J.W.’s testimony that Reed pushed
M.W. M.W. also testified that she thought her mother carried her outside, which
is not inconsistent with J.W.’s testimony that his grandmother had to help her out
of the house. While Reed thinks defense counsel should have subpoenaed K.S. to
testify whether her hair caught on fire, her potential testimony as noted herein
would have largely corroborated J.W.’s testimony, even if it differed on this one
detail. We are therefore unpersuaded that, had trial counsel pressed inconsistences
in J.W.’s testimony, the result of the trial would have been different.

4
J.W.’s testimony that Reed was “acting like he was peeing” is consistent with K.S.’s
statement to police that Reed was spraying the fluid “as if he was urinating.”

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No. 2018AP1597-CR

IV. Cumulative Error

¶17 Finally, Reed argues that the cumulative effect of these failures
prejudiced him. See State v. Thiel, 2003 WI 111, ¶¶4, 59, 264 Wis. 2d 571, 665
N.W.2d 305. However, we have concluded that there were no individual harmful
errors, so there can be no cumulative effect. See Mentek v. State, 71 Wis. 2d 799,
809, 238 N.W.2d 752 (1976) (“Zero plus zero equals zero.”); see also Thiel, 264
Wis. 2d 571, ¶61 (“[I]n most cases, errors, even unreasonable errors, will not have
a cumulative impact sufficient to undermine confidence in the outcome of the
trial.”).

CONCLUSION

¶18 In sum, Reed has not sufficiently alleged prejudice from any of
counsel’s supposed errors, and the record conclusively demonstrates he is not
entitled to relief. We therefore discern no erroneous exercise of discretion in the
circuit court’s decision to deny Reed’s postconviction motion without a hearing.

¶19 There are, however, two scrivener’s errors in the judgment of
conviction. The judgment lists the “939.621(1)(b)&(2) Domestic Abuse
Repeater” penalty enhancer for both convictions.5 However, the record reflects
that during the morning proceedings on August 1, 2017, the trial court asked the
State, “[T]he penalty enhancers on Count 1 and 2 … what are you doing with
those?” The State replied, “I’m going to ask the Court to dismiss those.” Reed
understandably did not object, so the trial court instructed, “All right, so take those

5
Successful application of this penalty enhancer means that “the maximum term of
imprisonment … may be increased by not more than 2 years if the person is a domestic abuse
repeater.” See WIS. STAT. § 939.621(2) (2015-16); WIS JI—CRIMINAL 984.

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No. 2018AP1597-CR

off the verdict forms and the instructions.” It is unclear why appellate counsel,
who noted that the penalty enhancers had been dismissed, did not take steps to
ensure the judgment correctly reflects Reed’s convictions. Therefore, we direct
that, upon remittitur, the clerk of the circuit court shall amend the judgment of
conviction to remove the domestic abuse repeater penalty enhancer from both
counts. See State v. Prihoda, 2000 WI 123, ¶¶26-27, 239 Wis. 2d 244, 618
N.W.2d 857. The judgment is otherwise affirmed.

By the Court.—Judgment modified and, as modified, affirmed; order
affirmed.

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

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