State v. Kunle Famakinwa, 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.
May 5, 2021
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. 2019AP395-CR Cir. Ct. No. 2016CF185

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KUNLE FAMAKINWA, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Ozaukee County: PAUL V. MALLOY, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

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. 2019AP395-CR

¶1 PER CURIAM. Kunle Famakinwa, Jr., appeals from a judgment
convicting him of possession with the intent to deliver tetrahydrocannabinols
(THC) in an amount of 200 grams or less and an order denying his postconviction
motion seeking a new trial due to the ineffective assistance of trial counsel. He
maintains that trial counsel performed deficiently in several ways, all of which
improperly led the jury to find that he was guilty of possessing THC with the
intent to deliver rather than for his own personal use. Because we conclude that
none of trial counsel’s allegedly deficient acts or omissions prejudiced
Famakinwa, we affirm.

BACKGROUND

¶2 Famakinwa crashed his sports utility vehicle (SUV) into a crowd
gathered at a local festival in Cedarburg. He injured two pedestrians. Police
arrived and ordered Famakinwa to exit his vehicle but he refused. The officers
noticed the smell of marijuana. They described his behavior as “aggressive” and
“resistive.” Famakinwa told officers he was diabetic and suffering from low blood
sugar. He was taken to the hospital for medical treatment. Test results revealed
that Famakinwa had a detectable amount of THC in his blood.

¶3 Officers searched Famakinwa’s vehicle and found a baggie of
marijuana, a jar of marijuana nuggets, and a scale. They suspected that
Famakinwa was involved in dealing marijuana. Famakinwa was charged with the
following four counts: two counts of causing great bodily harm by the operation
of a vehicle while having a detectable amount of a restricted controlled substance
in his blood; possession with intent to deliver THC in an amount 200 grams or
less; and possession of drug paraphernalia for the scale found in his SUV.

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No. 2019AP395-CR

¶4 Before trial, counsel advised the court that Famakinwa would plead
guilty to the charge of possessing drug paraphernalia. Counsel explained, “[W]e
aren’t going to argue about possession of drug paraphernalia. There was a scale in
his car. It was his, and” he will plead “guilty to it beforehand and take it out of the
mix.” The parties agreed that the paraphernalia charge would not be submitted to
the jury.

¶5 The remaining charges were tried to the jury.
Officer Eric Weisenberger testified that he was waved down by several people
near the crash. He observed Famakinwa sitting in the driver’s seat of the SUV and
smelled the strong odor of marijuana coming from inside. While standing next to
the vehicle, he saw what appeared to be a plastic bag of marijuana sitting in the
console cupholder.

¶6 Weisenberger testified that he later searched the SUV and found a
large jar of marijuana and a scale in the arm of the console. Some of the
discovered marijuana was in the form of nuggets. Weisenberger explained that he
had seen that type of marijuana previously, and he described it as “high quality
nuggets that people often like to sell.”

¶7 Weisenberger testified that part of his training focused on the
investigation of drug cases. A portion of his training involved periodic in-services
and unique trainings dealing with how drugs are sold and held for resale in the
community. Weisenberger testified that based on the individual packing of the
drug, the scale, and the “mass quantity of marijuana that was found,” he believed
that the evidence was consistent “[m]ore for distribution” than “personal use.” He
confirmed that from his experience working in Cedarburg, it was a “very large
amount” of marijuana.

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No. 2019AP395-CR

¶8 Famakinwa testified that on the day of the crash, he purchased four
ounces of medical marijuana “from a wellness center.” He explained that to get
the marijuana for a cheaper price, he had to buy an “abundant amount.”
Famakinwa told the jury that he had a scale in his vehicle because he previously
bought marijuana and found he was “shorted some grams,” so he used the scale to
make sure he received the “proper weight” of the drug purchased. Famakinwa
denied that he sold marijuana.

¶9 The State called Lieutenant Marshall Hermann as a rebuttal witness.
Hermann, who had over sixteen years of law enforcement experience, testified
about his duties investigating drug crimes as a lead detective for the Ozaukee
County Antidrug Task Force and assisting the Milwaukee district office of the
Drug Enforcement Administration. He managed cases for informants and
undercover officers who purchased marijuana. He also received training through
in-service events and materials.

¶10 Hermann explained to the jury the plant structure of marijuana and
which portions contain the most THC, the active ingredient in marijuana. He
testified that marijuana was generally sold by weight but could also be sold by the
bud or nugget. He confirmed that he had “seen … a quantity of buds contained in
a large jar and sold individually out of those[.]”

¶11 Hermann also testified about various indicia of drug distribution,
explaining that weighing equipment, different types of packaging, and drug
amounts were all indicators that the drug was being sold instead of being held for
personal use. He testified that, typically, marijuana weighing over one-half ounce
or one ounce was an indicator the drug was being sold and was not solely for
personal use.

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No. 2019AP395-CR

¶12 The jury found Famakinwa guilty of possession with intent to
deliver THC, but acquitted him of the other two counts.1

¶13 After sentencing, Famakinwa filed a postconviction motion seeking
a new trial on grounds that trial counsel was ineffective for failing to: (1) file a
formal, written discovery demand; (2) request a Daubert2 hearing as to the officers
who testified that the items found in Famakinwa’s car were consistent with
possession for distribution as opposed to personal use; (3) object to the officers’
expert testimony; and (4) object to the officers’ testimony about the scale found in
Famakinwa’s SUV.

¶14 The circuit court conducted an evidentiary Machner3 hearing. Trial
counsel testified that he expected both Weisenberger and Hermann to offer
testimony about various indicia of drug delivery. Counsel recalled that “multiple
times” throughout his career, the State called officers to testify as lay experts to
their personal experience about indicia of intent to deliver drugs. Counsel testified
that he did not consider this evidence to be improper expert testimony as it was
based on the officers’ training and experience. For these same reasons, counsel
did not file a Daubert motion. When asked about having Famakinwa plead to the
paraphernalia charge, counsel explained, “Well, the jury’s not contemplating
another criminal charge. It was there. It was paraphernalia. Clean—I do not

1
Famakinwa stipulated that there was a detectable amount of THC in his system. The
apparently successful theory of defense was that Famakinwa’s diabetes caused the accident.
2
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
3
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (where a
defendant claims he or she received the ineffective assistance of trial counsel, a postconviction
hearing “is a prerequisite … on appeal to preserve the testimony of trial counsel”).

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No. 2019AP395-CR

throw a bunch of crap at the wall, and I think that in that case it was—it was one
less thing that the jury had to consider.” Trial counsel admitted that there was
nothing about the process of pleading guilty that would have prevented the jury
from hearing about the scale, and he acknowledged that it was never suggested in
any way that if Famakinwa pled to the paraphernalia charge, the scale would not
be discussed at trial.

¶15 Famakinwa testified at the Machner hearing that he spoke with trial
counsel about the decision to plead guilty to the paraphernalia charge and believed
the scale would not be disclosed to the jury. Famakinwa did not state exactly what
trial counsel said, but said his “understanding of it” was that the scale would not
be discussed.

¶16 The circuit court denied the motion for postconviction relief,
emphasizing the lack of prejudice: “The testimony of the officers was never going
to be kept out. Never was.” Additional facts taken from the Machner hearing are
included in the discussion section.

DISCUSSION

¶17 On appeal, Famakinwa maintains that he is entitled to a new trial due
to trial counsel’s ineffectiveness. The test for ineffective assistance of counsel has
two prongs: (1) a demonstration that counsel’s performance was deficient and
(2) a demonstration that the deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient
performance, a defendant must show specific acts or omissions of counsel that
were “outside the wide range of professionally competent assistance.” Id. at 690.
To satisfy the prejudice prong, the defendant must demonstrate that there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of

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No. 2019AP395-CR

the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.

¶18 Whether counsel’s actions were deficient or prejudicial is a mixed
question of law and fact. Id. at 698. The circuit court’s findings of fact will not
be reversed unless they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628,
634, 369 N.W.2d 711 (1985). However, whether counsel’s conduct violated the
defendant’s right to effective assistance of counsel is a legal determination, which
this court decides de novo. Id. We need not address both prongs of the test if the
defendant fails to make a sufficient showing on either one. Strickland, 466 U.S. at
697.

¶19 According to Famakinwa, trial counsel performed deficiently by
failing to take several actions that would have led the jury to find that he possessed
the THC solely for his own use, and therefore would have led to his acquittal. We
reject each of his interrelated claims based on Strickland’s prejudice prong.

¶20 Famakinwa first argues that counsel provided ineffective assistance
by “failing to obtain pretrial discovery.” We agree with the State that the framing
of this argument mischaracterizes trial counsel’s actions. While trial counsel did
not file a written discovery demand, he did obtain the discovery materials. At the
Machner hearing, trial counsel testified that he did not file a written discovery
demand because that was something one would do at the beginning of a case. By
the time he was retained, discovery had been exchanged and was ongoing. Trial
counsel repeatedly explained that he “already had discovery,” and that the
prosecutor’s office was providing supplemental discovery to him on an ongoing
basis. Famakinwa has not shown any prejudice from the lack of a written
discovery demand.

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No. 2019AP395-CR

¶21 Famakinwa asserts that had trial counsel filed a formal discovery
demand, the State would have been obligated to provide a notice of expert along
with a summary of Weisenberger’s expected testimony. According to Famakinwa,
the notice would have caused trial counsel to object to Weisenberger’s testimony
that the high quality marijuana nuggets, individually packaged marijuana, scale,
and drug amounts found in Famakinwa’s possession were consistent with
distribution.

¶22 Here again, Famakinwa does not establish prejudice. First of all,
there is no reason to believe that receiving the notice of expert would have led trial
counsel to object. To the contrary, when faced with Weisenberger’s trial
testimony, counsel did not object. This is in line with trial counsel’s Machner
hearing testimony that based on his experience in “plenty of drug trials[,]” he
expected Weisenberger to opine that the items found in Famakinwa’s SUV were
consistent with drug distribution and further, that counsel did not consider this
testimony objectionable. Second, there is no reason to believe that the circuit
court would have sustained trial counsel’s hypothetical objection. Indeed, after
considering the Machner hearing evidence, the court explicitly found that
Weisenberger’s testimony was proper and admissible.

¶23 Next, Famakinwa argues that trial counsel performed deficiently by
failing to request a Daubert hearing challenging the expert testimony of
Officer Weisenberger and Lieutenant Hermann, or in the alternative, for failing to
object to their testimony on Daubert grounds.

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No. 2019AP395-CR

¶24 The admissibility of expert testimony is governed by WIS. STAT.
§ 907.02(1) (2019-20),4 which provides:

If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and methods,
and the witness has applied the principles and methods
reliably to the facts of the case.

This version of the statute was enacted in 2011 to embody Daubert’s reliability
standard. State v. Giese, 2014 WI App 92, ¶17, 356 Wis. 2d 796, 854 N.W.2d
687. It assigns to the circuit court a gate-keeping function “to ensure that the
expert’s opinion is based on a reliable foundation and is relevant to the material
issues.” Id., ¶18.

¶25 Famakinwa asserts that if trial counsel had challenged the expert
testimony or lodged objections under Daubert, the circuit court would have ruled
the testimony inadmissible. The record does not support this assertion. The
circuit court properly determined at the Machner hearing that the officers’
testimony was admissible. Both officers testified about their qualifications and
tied their training and experience to their familiarity with how drugs are
consumed, packaged, and delivered. They applied their training and experience to
the facts of this case. Neither filing a Daubert motion nor objecting at trial would
have excluded the officers’ testimony or limited its scope, and therefore,

4
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP395-CR

Famakinwa has again failed to show prejudice from counsel’s allegedly deficient
performance.

¶26 We reject Famakinwa’s contention that the expert testimony was
inadmissible because the officers’ testimony about their qualifications was vague,
and neither officer supported their opinion with scientific studies or statistics. We
agree with the State that neither Daubert nor any of the other authority cited by
Famakinwa requires that a methodology or opinion be supported by scientific
studies or statistics.

¶27 We also reject Famakinwa’s argument that trial counsel should have
filed a Daubert motion or lodged objections based on Daubert because there was
no reason not to do so. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)
(Supreme Court precedent does not establish a “nothing to lose” standard for
ineffective assistance of counsel claims). Famakinwa was not prejudiced by trial
counsel’s failure to file meritless motions or lodge meritless objections. See State
v. Reynolds, 206 Wis. 2d 356, 369, 557 N.W.2d 821 (Ct. App. 1996).

¶28 Next, relying on the fact that he pled guilty to the paraphernalia
charge, Famakinwa argues that trial counsel was ineffective for failing to object to
references to the scale found in Famakinwa’s vehicle. We are not persuaded.
Though the paraphernalia charge was not before the jury, the scale was relevant to
the issue of whether he possessed THC with the intent to deliver. With or without
the paraphernalia charge, the jury would have inevitably heard that a scale was
found in Famakinwa’s vehicle. Famakinwa has not shown prejudice from trial
counsel’s failure to lodge a meritless objection.

¶29 Famakinwa asserts that his plea to the paraphernalia charge
constituted an agreement with the State that evidence of the scale would not be

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No. 2019AP395-CR

presented to the jury. This contention is contradicted by the record. At trial,
although the parties confirmed that the drug paraphernalia charge would not be
submitted to the jury, neither attorney indicated that the jury would be precluded
from hearing about the scale found in Famakinwa’s possession. At the Machner
hearing, trial counsel testified that he did not recall any such agreement or any
discussions with Famakinwa about pleading to the drug paraphernalia charge in
exchange for the parties not discussing the scale at trial. Trial counsel testified
about his strategic reasons for taking the paraphernalia charge “out of the mix.”
None was based on preventing the jury from hearing about the scale in
Famakinwa’s vehicle. It defies common sense that the State would agree to forego
mention of the scale, which was probative on the issue of intent to deliver, in
exchange for Famakinwa’s plea to a provable misdemeanor. The only evidence of
this agreement is Famakinwa’s self-serving Machner hearing testimony, which
the circuit court implicitly rejected.

¶30 Finally, we reject Famakinwa’s argument that the cumulative effect
of trial counsel’s alleged errors entitles him to a new trial. We have concluded
that none was prejudicial under Strickland. Counsel’s choice not to file a written
discovery demand resulted only in counsel not receiving a witness disclosure that
he foresaw and was ready to confront. Pursuing a Daubert challenge or lodging
meritless objections to admissible evidence would have had no effect. Objecting
to mention of the scale found in Famakinwa’s possession would have failed
because the evidence was relevant to the charge of possession with intent to
deliver. Whether viewed separately or together, the acts and omissions
complained of do not undermine our confidence in the outcome of Famakinwa’s
trial. “Zero plus zero equals zero.” Mentek v. State, 71 Wis. 2d 799, 809, 238
N.W.2d 752 (1976).

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No. 2019AP395-CR

By the Court.—Judgment and order affirmed.

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

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