State v. Johnnie Lee Tucker

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. 2020AP803 Cir. Ct. No. 2015CF5039

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHNNIE LEE TUCKER,

DEFENDANT-APPELLANT.

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

Before Brash, C.J., Donald, P.J., and Dugan, 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. 2020AP803

¶1 PER CURIAM. Johnnie Lee Tucker, pro se, appeals from a circuit
court order denying his WIS. STAT. § 974.06 (2019-20)1 motion. Tucker raises
multiple claims of ineffective assistance of counsel. For the reasons discussed
below, we reject each of Tucker’s arguments and affirm.

BACKGROUND

¶2 In 2016, a jury found Tucker guilty of one count of first-degree
intentional homicide and one count of possession of a firearm by a felon arising
from the fatal shooting of C.A. outside of Waz’s Pub, a tavern in Milwaukee.2

¶3 Following his conviction, Tucker, through counsel, pursued a direct
appeal. This court affirmed, see State v. Tucker (Tucker I), No. 2017AP840-CR,
unpublished slip op. (WI App Aug. 28, 2018), and the Wisconsin Supreme Court
denied review.

¶4 On March 18, 2020, Tucker, pro se, filed the WIS. STAT. § 974.06
postconviction motion which underlies this appeal. Tucker’s claims included that
his trial counsel was ineffective for: (1) failing to properly challenge testimony
from a detective “identifying ‘the shooter’”; (2) failing to properly investigate and
handle video surveillance evidence, and provide Tucker with copies of the video
surveillance evidence; (3) advising Tucker not to testify; (4) failing to call the
tavern’s security guard, Tyrone Williams, to testify; and (5) failing to challenge

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

The tavern is referred to throughout the record as “Waz’s Tavern,” “Waz’s Pub,” and
2

“Waz’s Bar.” For ease of reading and consistency, this opinion refers to the tavern as “Waz’s
Pub.”

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the sufficiency of the evidence. Tucker also contended that postconviction
counsel was ineffective for failing to properly raise these issues.

¶5 The postconviction court denied the motion without a hearing. The
court concluded that Tucker’s claims were conclusory and insufficient to warrant
relief. Tucker now appeals.

¶6 On April 16, 2021, Tucker filed a brief-in-chief with this court. On
the same date, Tucker filed a motion to supplement the record with an affidavit
from Williams, or, alternatively, to stay the appeal and remand the case to the
circuit court for him to file an amended motion. We stayed the appeal, and
allowed Tucker to file a supplemental postconviction motion.

¶7 On June 1, 2021, Tucker filed his supplemental postconviction
motion with an affidavit from Williams. On June 8, 2021, the postconviction
court denied Tucker’s supplemental motion without an evidentiary hearing. The
court found that Williams’s affidavit did not contain the statements that Tucker
claimed. The court concluded that Williams’s statements “offer little to nothing of
value about the identity [of] the shooter” and, therefore, “had trial counsel
presented his testimony at [Tucker’s] trial, there is no reasonable probability that it
would have altered the verdict.”

DISCUSSION

¶8 On appeal, Tucker renews the arguments in his WIS. STAT. § 974.06
postconviction motion. We first address the relevant legal principles. We then
turn to Tucker’s specific arguments.

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I. Legal Principles

¶9 When a defendant pursues relief under WIS. STAT. § 974.06
following a prior appeal, the motion must establish a “sufficient reason” for failing
to raise any issues that could have been raised in the earlier proceedings. State v.
Escalona-Naranjo, 185 Wis. 2d 168, 185-86, 517 N.W.2d 157 (1994). A claim of
ineffective assistance of postconviction counsel may constitute a “sufficient
reason” to overcome the procedural bar. See State ex rel. Rothering v.
McCaughtry, 205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App. 1996). To prevail
on a claim that postconviction counsel was ineffective for failing to challenge trial
counsel’s ineffectiveness, the defendant must show that trial counsel was in fact
ineffective. See State v. Ziebart, 2003 WI App 258, ¶15, 268 Wis. 2d 468, 673
N.W.2d 369.

¶10 To establish ineffective assistance of counsel, a defendant must
prove both that counsel’s performance was deficient and that the defendant was
prejudiced by the deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984). If the defendant fails to adequately show one prong of the test,
we need not address the second. Id. at 697.

¶11 When deciding whether a defendant is entitled to an evidentiary
hearing based on an ineffective assistance of counsel claim, we first independently
determine “whether the motion on its face alleges sufficient material facts that, if
true, would entitle the defendant to relief.” State v. Ruffin, 2022 WI 34, ¶27, 401
Wis. 2d 619, 974 N.W.2d 432. “Whether the record conclusively demonstrates
that the defendant is entitled to no relief is also a question of law we review
independently.” State v. Spencer, 2022 WI 56, ¶23, 403 Wis. 2d 86, 976 N.W.2d
383 (citations omitted). “If the record conclusively demonstrates the defendant is

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not entitled to relief, the circuit court has the discretion to decide whether to hold a
hearing, which we review for an erroneous exercise of discretion.” Id.

II. Detective Butz’s testimony

¶12 At trial, Detective Nathan Butz testified that Waz’s Pub had an
interior and exterior video surveillance system. When the videos were shown to
the jury, Detective Butz testified at one point that “the subject pictured on the left-
hand side of the screen that just entered the tavern would be the shooter outside.”
Trial counsel objected on the grounds that this was “a jury determination.”

¶13 After a sidebar, the circuit court instructed the jury in pertinent part
that “ultimately it’s going to be your determination of what you see in this video
and who you think is the shooter and of course ultimately whether the defendant is
that person.” The court further stated that “you’re going to have to decide those
ultimate issues, so the detective’s comments I think are limited just to that, they’re
not the ultimate conclusion, but I think you’re entitled to the benefit of the thought
process and observations and evidence gathered as part of the investigation.”

¶14 On direct appeal, Tucker contended that the circuit court erred
because Detective Butz’s testimony was inadmissible lay opinion testimony, see
WIS. STAT. § 907.01, and improperly “usurped” the jury’s fact-finding authority.
We rejected this argument, concluding that there was no support in the record for
the assertion that Detective Butz identified Tucker as the shooter, and that the
circuit court properly admitted the testimony. See Tucker I, No. 2017AP840-CR,
¶¶4-5.

¶15 Tucker now asserts that his trial counsel was ineffective for failing to
argue that Detective Butz’s testimony should have been excluded because it:

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(1) violated due process; and (2) was inadmissible under WIS. STAT. § 904.03,
which provides that relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice[.]”

¶16 Even if we were to conclude that trial counsel performed deficiently,
Tucker cannot establish that trial counsel’s performance prejudiced him. As stated
above, after the testimony at issue, the circuit court provided a cautionary, or
limiting instruction to the jury. The court specifically instructed the jurors that
they were responsible for determining what they saw on the video and whether
Tucker was the person in the video. This instruction presumptively cured any
potential prejudice to Tucker. See State v. Jennaro, 76 Wis. 2d 499, 508, 251
N.W.2d 800 (1977) (stating that limiting instructions “are presumed to cure the
prejudicial effect of erroneously admitted evidence”). Thus, Tucker has failed to
show that, had his trial counsel objected on due process grounds or under WIS.
STAT. § 904.03, there was a reasonable probability that the outcome of the trial
would have been different. See Strickland, 466 U.S. at 694.

¶17 Moreover, because Tucker has not shown that trial counsel was
ineffective, it follows that postconviction counsel was not ineffective for failing to
raise an ineffective assistance of trial counsel claim. See Ziebart, 268 Wis. 2d

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468, ¶15. Accordingly, we conclude that the circuit court properly denied
Tucker’s claims relating to Detective Butz.3

III. Video surveillance evidence

¶18 Tucker next makes several arguments regarding the video
surveillance evidence presented at trial. As discussed below, we reject each of
Tucker’s arguments.

¶19 First, Tucker argues that trial counsel was ineffective because he
failed to prevent the State from using the surveillance video evidence in a
“misleading and improper” way. He contends that the State “strung a series of
video excerpts together” to mislead the jury into believing that he was the shooter.

¶20 The State’s case, however, turned on a single video clip where an
individual is seen struggling with C.A., the victim, and pointing a gun at C.A.’s
back as C.A. attempts to get away. Venita Pugh, Tucker’s ex-girlfriend and
mother of his child, positively identified Tucker as the individual in the video clip.
Thus, the State’s case did not rest on multiple videos strung together.

¶21 Second, Tucker argues that trial counsel failed to point out to the
jury that the videos did not capture a “hand movement” or “flash” coming from

3
We note that Tucker also suggests that Detective Butz’s testimony constitutes “plain
error.” Tucker’s plain error argument in his WIS. STAT. § 974.06 motion, however, is conclusory
and undeveloped. We generally do not address conclusory and undeveloped claims. State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). Moreover, even if we assume
that Tucker met his burden to establish plain error—and we emphasize we are not making this
finding—any error was harmless. See State v. Jorgensen, 2008 WI 60, ¶23, 310 Wis. 2d 138,
754 N.W.2d 77. As discussed above, the jurors were specifically instructed that they were
responsible for determining what they saw on the video and whether Tucker was the person in the
video. This instruction rendered any error harmless.

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the suspect’s gun. According to Tucker, because there is not a flash, there is not
evidence that the gun fired. However, D.A., one of C.A.’s brothers, testified that
he watched C.A. cross the street, saw a person shoot at C.A., and heard the
gunshots. He then saw C.A. collapse. As a result, trial counsel’s failure to point
out there was not a “hand movement” or “flash” is not deficient performance.

¶22 Third, Tucker argues that there was video evidence depicting D.A.
shooting a gun in the direction of C.A., immediately prior to C.A.’s death, but that
trial counsel failed to show that video to the jury. Trial counsel did, however, use
video evidence to attempt to establish that D.A. had shot C.A. During the cross-
examination of T.A., another one of D.A.’s brothers, trial counsel played a video
to see if the video showed D.A. shooting. T.A. acknowledged that he could see
D.A. “extending his arm in an easterly direction,” but stated that he could not see
anything in D.A.’s hand.

¶23 In addition, Tucker argues that trial counsel and postconviction
counsel were ineffective for failing to provide him with copies of the surveillance
videos. As the State notes, Tucker does not point to any deficiencies during trial
counsel’s or postconviction counsel’s representation as a consequence of not
having the videos. Rather, Tucker argues that not having the videos “made it
impossible” for him to support his WIS. STAT. § 974.06 motion. Tucker’s motion
was filed after trial counsel’s and postconviction counsel’s representation had
concluded. Thus, Tucker cannot show that there is a reasonable probability, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. See Strickland, 466 U.S. at 694.

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No. 2020AP803

IV. Advice not to testify

¶24 Tucker also contends that his trial counsel was ineffective for
advising him that he should not testify.

¶25 The State observes that Tucker noted this issue in his WIS. STAT.
§ 974.06 motion introduction, but did not make or develop an argument on this
issue. Thus, the State argues that this issue is forfeited and requests that we
disregard this issue.

¶26 Tucker, in his reply brief, responds that the original motion that he
filed included this issue, but the County sent him a letter advising him that the
motion was oversized. He then had the motion re-typed and the issue regarding
trial counsel’s advice was inadvertently omitted. Tucker includes a copy of the
original motion with his reply brief appendix.

¶27 Tucker’s original motion, however, is not in the record, and he does
not cite any authority that would permit the filing of his original motion at this
time. We do not consider undeveloped or conclusory issues. See State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

V. Failure to call Williams

¶28 Tucker also argues that his trial counsel was ineffective for failing to
call Williams, the tavern security guard, as a defense witness. Tucker alleges that
Williams’s testimony would have been important to show that: (1) Tucker was
searched as he entered the bar that night and did not have a gun; and (2) Williams
did not see Tucker fire a gun at C.A.

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¶29 Relevant to this appeal, Williams swore to the following facts in his
affidavit: (1) he worked as a security guard at Waz’s Pub on November 14, 2015;
(2) he never let anyone in the building without doing a complete pat down; (3) he
never saw Tucker with a gun, nor shoot anyone the night of November 14, 2015;
and (4) on the night in question, he saw C.A.’s brother shooting a handgun, but
could not tell if it was in the air or at someone.

¶30 We reject Tucker’s argument that trial counsel was ineffective.
Williams asserts that his practice is not to let anyone into the tavern without doing
a pat down on them. Williams does not assert that he did a pat down of Tucker.
Thus, Williams’s affidavit does not establish that Tucker did not have a firearm.

¶31 Moreover, Williams’s affidavit does not assert that he witnessed the
shooting. Although Williams’s affidavit states that he never saw Tucker with a
gun or shoot anyone on the night of November 14, 2015, these statements do not
support Tucker’s defense. C.A. was shot and killed the night of November 13,
2015, not the night of November 14, 2015.

¶32 Thus, trial counsel could not be ineffective for failing to call
Williams, and postconviction counsel could not be ineffective for failing to allege
that trial counsel was ineffective. See Ziebart, 268 Wis. 2d 468, ¶15. Tucker has
failed to show that there is a reasonable probability that the result of the
proceeding would have been different. See Strickland, 466 U.S. at 694.

VI. Sufficiency of the evidence

¶33 Finally, Tucker contends that the State’s evidence was insufficient to
convict him.

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¶34 The State argues that Tucker improperly raised this claim in his WIS.
STAT. § 974.06 motion, and that this claim should instead be pursued as a claim of
ineffective assistance of appellate counsel in this court via a Knight petition. See
State v. Knight, 168 Wis. 2d 509, 512-13, 484 N.W.2d 540 (1992). The State also
contends that Tucker’s claim fails on the merits. We agree with the State that
Tucker’s claim fails on the merits.

¶35 When reviewing a sufficiency of the evidence claim, 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.” State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752
(1990). We will uphold a conviction, “[i]f 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,” and we do so even if we do not believe that the
trier of fact should have found guilt based on the evidence. Id.

¶36 Here, as discussed above, Tucker’s former girlfriend and mother of
his child identified Tucker in the video clip as the individual that struggles with
C.A., and then points a gun at C.A.’s back. Accordingly, there was sufficient
evidence for the jury to have reasonably concluded that Tucker was the person
who shot C.A. See id. at 501 (“It is well established that a finding of guilt may
rest upon evidence that is entirely circumstantial and that circumstantial evidence
is oftentimes stronger and more satisfactory than direct evidence.”).

¶37 Therefore, in sum, for all of the reasons stated above, we conclude
that the circuit court properly denied Tucker’s claims.

By the Court.—Order affirmed.

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

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