State v. Keith Allen Lamont Sims

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.
October 3, 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. 2021AP2071-CR Cir. Ct. No. 2016CF4706

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEITH ALLEN LAMONT SIMS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: FREDERICK C. ROSA and DAVID A. FEISS, Judges.
Affirmed.

Before White, 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. 2021AP2071-CR

¶1 PER CURIAM. Keith Allen Lamont Sims appeals from a judgment
convicting him of multiple crimes related to an armed robbery. Sims also appeals
from the order denying his postconviction motion for relief. Upon review, we
affirm.

BACKGROUND

¶2 On October 20, 2016, the State charged Sims with armed robbery,
first-degree reckless injury while using a dangerous weapon, armed burglary,
aggravated battery while using a dangerous weapon, and possession of a firearm
by a felon. According to the complaint, Sims and a male co-actor entered D.R.’s
home, the armed suspect pointed a gun at D.R. and demanded money. Both Sims
and the co-actor were masked. When D.R. stated that he did not have any money,
one of the men struck him in the face with a gun and turned his attention to D.R.’s
girlfriend, S.H. The armed man asked for her purse and struck her in the head
causing her to fall to the floor. After the men searched the kitchen, the armed man
grabbed S.H. by the arm and took her to a bedroom, where he shot her in the leg.
When the armed man came out of the room, he pointed a gun at D.R. “and pulled
the trigger twice[,] but the gun did not fire.” Both men ransacked the residence
and took down two televisions, but left one behind. Sims’s fingerprints were later
recovered from the television. The complaint further states that both D.R. and
S.H. identified Sims from a photo array.

¶3 Prior to trial, Sims, though represented by counsel, filed a pro se
motion to suppress identification evidence, alleging that he was identified as a
result of an impermissibly suggestive photo array. At a hearing, counsel told the
trial court that the identification issue should be addressed during witness cross-
examination, not at a suppression hearing. Sims conferred with counsel and the

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trial court conducted a colloquy with Sims to ascertain whether Sims agreed with
counsel’s strategy. Sims told the court that he agreed with counsel. Also prior to
trial, Sims’s counsel provided a notice of alibi, alleging that Sims was with Cedric
Buck when the crimes occurred.

¶4 The matter ultimately proceeded to trial where multiple witnesses,
including law enforcement, D.R., S.H., and Sims, testified. Detective Gary Cole
testified about the photo array he presented to D.R. and S.H. Cole stated that
Sims’s photo was included in the array because his fingerprints were found on the
television. The array consisted of eight folders, including six folders each
containing a photograph and two folders with a blank piece of paper. Cole stated
that he ensured that no one photo stood out by eliminating “discrepancies like
neck tattoos or anything like that that would single out my suspect over the
other[s].” He also stated that standard procedures provide that the officer showing
the array should not know the target, but he knew Sims was a target. Cole
clarified that he was not prohibited from administering the array, however,
because he did not know which folder contained Sims’s photo. Cole further
testified that his practice is to use a standardized department form to instruct the
witnesses on how the array is conducted, ensure the witnesses’ understanding of
the instructions, and tell the witnesses that they are not required to make an
identification. Cole also stated that he does not tell the witnesses that the suspect
is in the photo array.

¶5 Here, Cole took the array to the hospital where S.H. was being
treated. He stated that S.H. went through the folders one by one, and when she
reached the third folder—the one with Sims’s photo—she set it aside before
continuing with the other folders. After viewing all of the folders, S.H. handed
Cole the third folder and positively identified Sims as her shooter. When Cole

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asked S.H. why she chose that folder, she stated that she recognized the
perpetrator’s eyes and the shapes of his nose, mouth, and head. Cole also had S.H.
sign the back of the third photo where she wrote “positive ID of shooter.” After
S.H. signed the photo, Cole asked her if she knew Sims and told her that “she
picked the person who left fingerprints behind on the TV.” Cole acknowledged
that his statements were against department policy.

¶6 Cole testified that he later took the same photo array to D.R. and did
not shuffle the photos. Cole also testified that he was unaware of the department
policy that requires the creation of a new array when the same suspect will be
shown to another witness. Cole stated that D.R. was struggling to open his left eye
due to the injuries he sustained during the robbery and that D.R.’s glasses had
been broken during the robbery, but said that D.R. also positively identified Sims.
Specifically, Cole said that when D.R. reached the third folder, he stood up and
slammed his finger against the photo, stating “[t]hat’s the motherfucker who did
it.” D.R. asked Cole whether the perpetrator’s name was Keith, to which Cole
responded, “[j]ust keep going.” Cole stated that after D.R. finished reviewing the
photos, Cole noticed that D.R. circled “No. 3” on the identification form, rather
than “yes” or “no.” Cole told D.R. that he needed to circle “yes” or “no” for the
third folder. When D.R. circled “no,” Cole asked D.R. whether or not he made an
identification. D.R. responded in the affirmative. Cole told D.R. that he had to
circle “yes,” at which point D.R. circled “yes” “a whole bunch of times.” D.R.
placed his initials next to the alteration on the form. Cole admitted that the array
contained the photo also initialed by S.H., but stated that D.R. did not see the
initials as they were on the back of the photo and not visible.

¶7 After D.R. marked the form, Cole asked D.R. how he knew Sims.
D.R. told Cole that Sims was the son of a friend, but that he had not seen Sims in

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years. Cole admitted to telling D.R. that Sims was a suspect after D.R. finished
viewing the photo array.

¶8 Both D.R. and S.H. testified consistent with the facts in the criminal
complaint. With regard to their identification of Sims, D.R. testified that he
identified Sims from the photo array, that he told Cole he recognized “Keith”
when he reached Sims’s picture, and that Cole told him about Sims’s fingerprints
being found on the television after D.R. made an identification. S.H. testified that
Cole did not tell her whose fingerprints were in the house until after she identified
Sims and signed and dated the form. She also stated that Cole did not indicate
who S.H. should identify.

¶9 Sims also testified, telling the jury that D.R. was a family friend with
whom Sims would drink and smoke. Sims denied robbing D.R. and shooting
S.H., stating that he was with his five-year-old son on the night of the incident.
Sims testified that D.R. was angry with him for selling D.R. fake drugs and then
refusing to refund D.R.’s money. Sims also stated that his fingerprints were on
D.R.’s television because he turned the television on while visiting D.R. in the
past.

¶10 The jury ultimately found Sims guilty as charged. The trial court
imposed a combination of concurrent and consecutive imprisonment terms,
resulting in a total term of imprisonment of thirty-three years.

¶11 Sims filed a postconviction motion, pursuant to WIS. STAT.
RULE 809.30 (2021-22),1 arguing that trial counsel was ineffective for failing to
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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file a pretrial motion to suppress D.R.’s and S.H.’s identifications. Sims also
argued trial counsel was ineffective for failing to investigate his alibi and present
two alibi witnesses, Buck and Selena Cole (Selena). Sims attached an unsigned
and unsworn affidavit from Buck to his motion.

¶12 With regard to the identification issue, the postconviction court
denied Sims’s claim without a hearing. The postconviction court acknowledged
that Cole did not follow proper procedure in conducting the photo arrays, but
found that the identifications were reliable under the totality of the circumstances.
The postconviction court stated that it would not have granted a pretrial
suppression motion. With regard to the alibi issue, the postconviction court
rejected Sims’s claim as to Buck, noting that Buck’s affidavit was unsigned and
unsworn, and essentially unreliable. The postconviction court also noted that
Buck told a defense investigator that he did not know Sims, thus, “[c]ounsel
cannot be deemed ineffective for failing to call a witness who would not support
an alibi defense” (emphasis in original). The postconviction court granted a
Machner2 hearing limited to Sims’s claim about trial counsel’s failure to
investigate Selena.

¶13 Trial counsel, Sims and Selena all testified at the Machner hearing.
Counsel testified that Buck was the only alibi witness he genuinely considered, but
that Buck failed to respond to a subpoena or counsel’s messages. Trial counsel
stated that he had concerns about Buck being a reliable witness, especially after
Buck denied knowing Sims. Trial counsel said that Sims informed him of other
potential witnesses, including a woman whom Sims identified as “Bad Ass” and

2
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP2071-CR

for whom Sims had provided a phone number. According to counsel, the
investigator linked this number to Selena, but the investigator was unable to reach
Selena. Trial counsel could not recall whether he spoke to Sims about seeking an
adjournment in order to track down other potential witnesses, but stated that Sims
was adamant about maintaining his speedy trial rights.

¶14 Sims testified that he discussed his alibi defense with his trial
counsel and that he gave counsel the names of Selena, Buck, and two other
witnesses, whom he only knew by their nicknames. Sims acknowledged that the
investigator told him that she could not reach Selena. While acknowledging his
speedy trial demand, Sims denied telling trial counsel that he wanted to go to trial
without his alibi witnesses. Sims said that trial counsel never discussed an
adjournment with him.

¶15 Selena also testified, relaying the timeline for the time she spent with
Sims, which included the night of the robbery and shooting. She stated that she
was with Sims from 11:00 a.m. the morning of the incident, until about noon the
following day, and that she stayed the night with him.

¶16 The postconviction court denied the remainder of Sims’s motion,
finding that Selena’s timeline did not match Sims’s trial testimony, particularly as
to when Sims was with his son. The postconviction court stated that because
Selena’s testimony ran contradictory to Sims’s trial testimony, trial counsel’s
failure to call Selena was not prejudicial to Sims’s defense. This appeal follows.

DISCUSSION

¶17 On appeal, Sims again contends that his trial counsel was ineffective
for failing to move to suppress identification evidence and for failing to call Buck

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and Selena as alibi witnesses. Sims also contends that he is entitled to a new trial
in the interest of justice.

¶18 In a postconviction motion, a defendant must allege sufficient
material facts that, if true, would entitle the defendant to relief. State v. Allen,
2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. If the defendant does so, the
postconviction court must hold an evidentiary hearing on the defendant’s motion.
Id. However, if the “motion does not raise facts sufficient to entitle the
[defendant] to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the
[postconviction] court has the discretion to” deny the motion without a hearing or
to grant an evidentiary hearing despite the deficient motion. Id.

Ineffective Assistance of Counsel

¶19 “Whether counsel was ineffective is a mixed question of fact and
law.” State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 358, 805 N.W.2d 334.
“The factual circumstances of the case and trial counsel’s conduct and strategy are
findings of fact, which will not be overturned unless clearly erroneous; whether
counsel’s conduct constitutes ineffective assistance is a question of law, which we
review” independently. State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431,
904 N.W.2d 93. To prove a claim of ineffective assistance of counsel, the
defendant must satisfy two tests: first, that counsel’s performance was deficient;
and second, that counsel’s deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). “If the defendant fails to satisfy either
prong, we need not consider the other.” Breitzman, 378 Wis. 2d 431, ¶37.

¶20 Sims first contends that trial counsel was ineffective for failing to
file a pretrial motion to suppress identification evidence derived from what he

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contends was an impermissibly suggestive photo array. In denying Sims’s
postconviction motion without a hearing, the postconviction court found that
under the totality of the circumstances, the evidence was reliable. The
postconviction court stated that had Sims moved for pretrial suppression, the court
would have denied the motion. Counsel is not ineffective for failing to file a
meritless motion. See State v. Harvey, 139 Wis. 2d 353, 380, 407 N.W.2d 235
(1987).

¶21 Sims next contends that trial counsel was ineffective for failing to
investigate and call two potential alibi witnesses: Buck and Selena. The
postconviction court denied Sims’s motion as to Buck without a hearing, but still
heard testimony regarding the issue at the Machner hearing. The record supports
the postconviction court’s findings. Although trial counsel initially filed a notice
of alibi naming Buck as a potential witness, Buck failed to respond to a subpoena
and failed to respond to counsel’s messages. Later, Buck told a defense
investigator that he did not know Sims. The postconviction court correctly noted
that counsel cannot be deemed ineffective for failing to call a witness whose
testimony would not support an alibi defense. Moreover, at the Machner hearing
counsel told the postconviction court that he had reservations about calling Buck
as a witness due to Buck’s unreliability. We will not second-guess trial counsel’s
reasonable strategy. See Breitzman, 378 Wis. 2d 431, ¶65.

¶22 As to Selena, the postconviction court heard testimony from trial
counsel, Sims, and Selena before determining that counsel was not ineffective.
Again, the record supports the postconviction court’s decision. The record
establishes that trial counsel did try to track down Selena with only Sims’s
description of “Bad Ass” and a phone number. The defense investigator could not
locate her. Sims’s claim that an adjournment would have allowed the defense to

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obtain additional admissible evidence related to the alibi is speculative at best.
Moreover, at the Machner hearing, Selena provided a timeline of events that
directly contradicted Sims’s trial testimony. Selena’s testimony does not provide a
reasonable probability of a different outcome; indeed, Selena’s testimony likely
would have undermined Sims’s credibility. In short, trial counsel was not
ineffective with regard to his investigation of Selena.

Interest of Justice

¶23 Sims contends that he is entitled to a new trial in the interest of
justice because the real controversy of his case was not fully tried. This court may
order a new trial pursuant to WIS. STAT. § 752.35 when the real controversy has
not been fully tried or when it is probable that justice has miscarried. “The power
to grant a new trial in the interest of justice is to be exercised ‘infrequently and
judiciously.’” State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407, 826 N.W.2d 60
(citation omitted). To consider whether a case is one of the few requiring
discretionary reversal, this court “must engage in ‘an analysis setting forth the
reasons’ that the case may be characterized as exceptional.” State v. McKellips,
2016 WI 51, ¶52, 369 Wis. 2d 437, 881 N.W.2d 258 (citation omitted). In this
case, we are unable to state why this case is exceptional and we conclude that the
controversy was fully tried.

¶24 For the foregoing reasons, we affirm.

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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