State v. Nyrobi William Allen

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 15, 2024
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. 2023AP903-CR Cir. Ct. No. 2020CF163

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NYROBI WILLIAM ALLEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: JOSEPH R. WALL, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Geenen, 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. 2023AP903-CR

¶1 PER CURIAM. Nyrobi William Allen appeals from the judgment
of conviction, entered upon a jury’s verdict, for several offenses including three
counts of attempted first-degree intentional homicide, two counts of first-degree
reckless injury with use of a dangerous weapon, and armed robbery. Allen argues
that the circuit court failed to consider his motion for self-representation in a
timely manner, declined to strike for cause two objectively biased jurors, and
incorrectly calculated the restitution order. For the reasons stated below, we reject
Allen’s arguments and affirm.

BACKGROUND

¶2 Allen’s charges arose from a home invasion in Milwaukee in
December 2019. According to the criminal complaint, Allen entered the dwelling
of A.B. and C.D., demanding money.1 He began stabbing them with a butcher
knife and A.B. rolled on top of C.D. to protect her unborn child—C.D. was near
the end of her pregnancy. After causing great bodily harm to both A.B. and C.D.,
Allen eventually fled with A.B.’s backpack, which contained personal items of
value.

¶3 During a pretrial hearing on April 20, 2021, Allen and his counsel
informed the circuit court that he wanted to represent himself; however, the court
decided to address the request at a later date. The trial proceeded and a jury was
selected without the court addressing Allen’s self-representation request. After a
death in counsel’s family, the defense moved for an adjournment, which Allen
agreed to on the record.

1
To protect the identity of the victims, we have substituted initials that do not
correspond to their real names. See WIS. STAT. RULES 809.19(1)(g) and 809.86.

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No. 2023AP903-CR

¶4 The case again proceeded to trial in July 2021. During voir dire, the
defense argued that two potential jurors should be struck for cause for objective
bias after they each stated they would give more weight to the testimony of a
police officer because the person was a police officer. When the court did not
agree, the defense elected to use peremptory strikes to remove them from the final
jury panel.2

¶5 On the fourth day of trial, Allen informed the circuit court that he
wanted trial counsel off the case because he was not being helpful. When Allen
expressed wanting to bring in new counsel, the circuit court considered his request
to have been made too late in the trial, but stated that Allen could represent
himself. After some consideration, Allen told the court he wanted trial counsel to
continue representing him.

¶6 The jury found Allen guilty of all six charged offenses: two counts
of attempted first-degree intentional homicide for victims A.B. and C.D.; one
count of attempted first-degree intentional homicide of an unborn child; two
counts of first-degree reckless injury by using a dangerous weapon for victims
A.B. and C.D.; and armed robbery. The circuit court imposed a global sentence of
fifty-five years of imprisonment, bifurcated as forty years of initial confinement
and fifteen years of extended supervision, to be served consecutively to a
revocation sentence Allen was serving. At a restitution hearing, the court ordered
restitution in the amount of $5,245.50 to A.B., which included costs of relocation,
and $28,800.50 to the Wisconsin Crime Victim Compensation Program.

2
The Honorable Joseph R. Wall presided over Allen’s trial and sentencing. The
Honorable Danielle L. Shelton presided over Allen’s restitution hearing and determined the
restitution order. We refer to either judge as the circuit court.

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No. 2023AP903-CR

¶7 This appeal follows.

DISCUSSION

¶8 Allen argues that this court should reverse his conviction and
remand for a new trial on three bases. First, he asserts that his Sixth Amendment
right of self-representation was violated when the circuit court failed to timely
address his request to represent himself. Second, he contends that the court erred
when it denied his motion to strike two jurors for cause for objective bias. Third,
he argues that the court erred when it calculated the restitution order. Upon
review, we reject Allen’s arguments.

I. Right to self-representation

¶9 Allen’s first argument is that he clearly requested self-representation
and the circuit court failed to address his request in a timely manner. He contends
this violated his constitutional rights.

¶10 Defendants have the right to conduct their own defense. U.S.
CONST. amend. VI; WIS. CONST. art. I, § 7. “[A] defendant must clearly and
unequivocally declare a desire to represent himself or herself in order to invoke
that right[.]” State v. Darby, 2009 WI App 50, ¶1, 317 Wis. 2d 478, 766 N.W.2d
770. Whether a defendant’s “constitutional right to self-representation was
violated presents a question of law” that we independently review. Id., ¶13.

¶11 Allen argues that his constitutional rights were violated when the
circuit court did not engage in the Klessig colloquy required to determine if he was

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No. 2023AP903-CR

waiving the Sixth Amendment right to counsel.3 State v. Klessig, 211 Wis. 2d
194, 206, 564 N.W.2d 716 (1997). We reject Allen’s framing of this issue. There
“is no duty on the part of the [circuit] court to advise a defendant regarding his or
her right to self-representation (i.e., perform the Klessig colloquy) if that defendant
has not clearly and unequivocally invoked that right.” State v. Egerson, 2018 WI
App 49, ¶18, 383 Wis. 2d 718, 916 N.W.2d 833. Therefore our question is
whether Allen made a clear and unequivocal request for self-representation.

¶12 We return to the record. At the April 20, 2021 hearing, Allen and
the circuit court had the following exchange after reviewing motions in limine and
discovery:

[ALLEN]: Man, right now I don’t even want no attorney.
I don’t want no attorney because ya all coming up with
discovery and I haven’t seen nothing. So I don’t even want
no attorney right, now, you know what I am saying? I
would rather take a chance doing myself. Furthermore, I
don’t even want [trial counsel] in my case no more.

THE COURT: Okay. We can talk about that Monday
morning, you can think about that.

¶13 At the April 23, 2021 pretrial hearing, Allen again expressed
extreme frustration about not being able to see discovery from jail and that “you
get upset with me when I say I don’t want to have the attorney on my docket no

3
When faced with a defendant requesting self-representation, the circuit court must
engage in what is referred to as the Klessig colloquy to prove a valid waiver of the Sixth
Amendment right to counsel. State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997).
The court must ensure that the defendant has “(1) made a deliberate choice to proceed without
counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware
of the seriousness of the charge or charges … and (4) was aware of the general range of
penalties” that could be imposed. Id.

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No. 2023AP903-CR

more.” Later in that hearing, trial counsel reminded the court about Allen’s
request:

[TRIAL COUNSEL:] …. When we were last in court,
Mr. Allen indicated that he had a desire to represent
himself in this case. I don’t know if he was being serious
when he said that, but I think—

[ALLEN:] I definitely was.

[TRIAL COUNSEL:] We need to address that issue to
make sure the record is clear.

[ALLEN:] I definitely was serious about that because like I
said—

THE COURT: We’ll address that Monday morning.
There’s a lot—there’s a number of questions I have to go
through with you if you’re serious about that. And if you
are serious about it, I would likely appoint [trial counsel] as
your standby attorney to give you any assistance that you
want, but you need to think about that decision over the
weekend and we’ll talk about that Monday.

¶14 However, the circuit court never addressed Allen’s request because
the defense moved for an adjournment before the jury was sworn in due to a death
in trial counsel’s family. Allen did not express a desire for self-representation
when the adjournment was discussed and instead agreed to the adjournment.

¶15 The trial began on July 6, 2021; Allen raised concerns about his
representation only after the State had presented its case for three days. On July 9,
2021, Allen informed the circuit court he would like trial counsel “off my case …
because we’re not seeing eye to eye.” Allen stated that he wanted the necessary
paperwork to “find somebody to carry on for me because [trial counsel is] not
helping me at all.” Trial counsel asked to clarify if Allen wanted to proceed with
self-representation. The circuit court reviewed the remaining legal matters in the
trial, but told Allen it was “impossible” to bring in another attorney at this point.

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No. 2023AP903-CR

The court offered Allen the opportunity to have a private conversation with trial
counsel. Allen refused and stated the case should proceed with trial counsel as his
representation. The circuit court questioned and confirmed that Allen wished to
proceed with counsel, and then the trial continued.

¶16 An assertion of the right to self-representation must be made
unequivocally and as an explicit choice. Adams v. Carroll, 875 F.2d 1441, 1444
(9th Cir. 1989). Here, Allen did not make an explicit choice. During the April
court appearances, Allen’s statements showed frustration with his access to
discovery and trial counsel—not a clear and unequivocal desire to represent
himself. The State argues Allen’s statements during the pretrial hearings were
“expressions of dissatisfaction” with trial counsel, and not a clear request to
represent himself. Darby, 317 Wis. 2d 478, ¶26. Further, Allen agreed to adjourn
the trial without renewing a request for self-representation.

¶17 During the July trial, Allen waited until the fourth day to voice a
desire to replace trial counsel and only considered self-representation when the
court found it impossible to replace counsel in the middle of trial. The State
contends that Allen’s request on the fourth day of trial is not a request to represent
himself, but a “request for another attorney,” which is also not a clear and
unequivocal request for self-representation. Id. When trial counsel acted as
Allen’s advocate and ensured his request for self-representation was recognized,
the circuit court gave Allen an opportunity to discuss the matter privately with
counsel. However, Allen refused this conversation and withdrew his request.

¶18 We conclude there was no violation. Allen was “disgruntled with
his attorney” but when given the opportunity to clearly state his desire to represent

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No. 2023AP903-CR

himself, he withdrew his request. Egerson, 383 Wis. 2d 718, ¶30. This claim
fails.

II. Objective juror bias

¶19 Allen’s second argument is that the circuit court did not strike for
cause two jurors who expressed that they would consider police testimony more
credible than lay witness testimony. Instead, Allen asserts he was forced to
exercise two peremptory strikes to remove those jurors. Allen argues that the
jurors showed objective bias, but the State contends that if bias was shown, it
should be considered subjective.

¶20 A defendant has a constitutional right to an unbiased jury. See State
v. Brunette, 220 Wis. 2d 431, 439, 583 N.W.2d 174 (Ct. App. 1998). “If a juror is
not indifferent in the case, the juror shall be excused. Any party objecting for
cause to a juror may introduce evidence in support of the objection.” WIS. STAT.
§ 805.08(1) (2021-22).4

¶21 Wisconsin recognizes three types of juror bias: statutory, subjective,
and objective. State v. Faucher, 227 Wis. 2d 700, 716, 596 N.W.2d 770 (1999).5
Subjective bias “describe[s] bias that is revealed through the words and the
demeanor of the prospective juror.” Id. at 717. This type of bias is “revealed by

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
5
By statute, a juror is considered biased when “the juror is related by blood, marriage or
adoption to any party or to any attorney appearing in the case, or has any financial interest in the
case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case.”
WIS. STAT. § 805.08(1). A statutorily biased juror “may not serve on a jury regardless of his or
her ability to be impartial.” State v. Faucher, 227 Wis. 2d 700, 717, 596 N.W.2d 770 (1999).
Statutory bias is not alleged or at issue in this matter.

8
No. 2023AP903-CR

the prospective juror on voir dire: it refers to the prospective juror’s state of
mind.” Id. In considering demeanor, “the circuit court’s assessment will often
rest on its analysis of the juror’s honesty and credibility.” State v. Funk, 2011 WI
62, ¶37, 335 Wis. 2d 369, 799 N.W.2d 421.

¶22 An objective bias analysis is an inquiry “not upon the individual
prospective juror’s state of mind, but rather upon whether the reasonable person in
the individual prospective juror’s position could be impartial.” Faucher, 227
Wis. 2d at 718. The circuit court focuses an assessment of objective bias “on the
reasonable person in light of [the] facts and circumstances” of the case. Id. at 719.

¶23 We return to the record. When asked if a juror would give more
weight to the testimony of a police officer simply because the person was a police
officer, Juror No. 12 said, “Absolutely,” and that he would give “slightly less”
weight to a citizen witness. Juror No. 30 said he would “give more weight to
police officers’ testimony” and that the police had “years of training and
experience[.]” Allen argues these statements show bias. The State contends that
both jurors were rehabilitated with additional questioning by the State. When
asked if they would be able to assess the credibility of a police officer fairly and
on the basis of evidence brought to trial, both jurors responded, “Yes.”

¶24 However, even if we assume that Allen made a showing of bias by
Juror Nos. 12 and 30, we conclude that any error was harmless. A claim of juror
bias is assessed under the harmless error statute. State v. Lindell, 2001 WI 108,
¶111, 245 Wis. 2d 689, 629 N.W.2d 223; WIS. STAT. § 805.18(2). This statute
provides that “[n]o judgment shall be reversed or set aside or new trial granted …
on the ground of selection or misdirection of the jury” unless the error “affected
the substantial rights” of the defendant. Sec. 805.18(2).

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No. 2023AP903-CR

¶25 Generally, defendants must show prejudice to prove that an error
affected their substantial rights. See Weborg v. Jenny, 2012 WI 67, ¶68, 341
Wis. 2d 668, 816 N.W.2d 191 (discussing that affecting substantial right arises
from a reasonable probability that the error contributed to the outcome of the
proceeding). As our supreme court explained, “[a]n error assigned to a refusal to
discharge a juror on challenge for cause cannot serve for reversal, since no
prejudice resulted to appellants. The juror was removed on peremptory challenge,
and no objection was made to the jury as finally impaneled.” Bergman v.
Hendrickson, 106 Wis. 434, 438-39, 82 N.W. 304 (1900). Here, Allen exercised
his peremptory strikes, ensuring that the jurors were not seated on the panel and
did not participate in the jury verdict. Allen acted “with a principal reason for
peremptories: to help secure the constitutional guarantee of trial by an impartial
jury.” United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000). We discern
no prejudice.

¶26 Further, it is not reversible error for the circuit court to “overrule a
challenge for cause, unless it is shown that an objectionable juror was forced upon
the party, and sat upon the case after such party had exhausted his [or her]
peremptory challenges.” Pool v. Milwaukee Mechanics’ Ins. Co., 94 Wis. 447,
453, 69 N.W. 65 (1896). Although Allen refers to his peremptory strikes as
“precious,” he has not developed an argument that he was harmed or forced to
“exhaust all his peremptory challenges[.]” Id. We decline to develop an argument
for him. State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992)
(“We cannot serve as both advocate and judge.”).

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No. 2023AP903-CR

III. Restitution order

¶27 Allen’s final argument is that the circuit court erred when it included
the victims’ relocation expenses in the restitution order. He contends that the
victims did not establish a causal nexus between the offense and the restitution
damages.

¶28 When imposing a sentence for any crime, the circuit court “shall
order the defendant to make full or partial restitution under this section to any
victim of a crime considered at sentencing … unless the court finds substantial
reason not to do so and states the reason on the record.” WIS. STAT. § 973.20(1r).
“Before restitution can be ordered, a causal nexus must be established between the
‘crime considered at sentencing,’ § 973.20(2), and the disputed damage.” State v.
Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147. The crime
considered at sentencing is interpreted broadly, encompassing “all facts and
reasonable inferences concerning the defendant’s activity related to the ‘crime’ for
which the defendant was convicted, not just those facts necessary to support the
elements of the specific charge of which the defendant was convicted.” State v.
Wiskerchen, 2019 WI 1, ¶25, 385 Wis. 2d 120, 921 N.W.2d 730 (citations
omitted). The victim has the burden of proving the value of losses sustained as a
result of a crime considered at sentencing. Sec. 973.20(14)(a).

¶29 Restitution is ordered at the discretion of the circuit court.
Wiskerchen, 385 Wis. 2d 120, ¶18. A circuit court properly exercises its
discretion when it considers the relevant facts under the applicable standard of law
and reaches a decision that a reasonable court could reach. Canady, 234 Wis. 2d
261, ¶6. We search the record for reasons to uphold the circuit court’s
discretionary decision. Wiskerchen, 385 Wis. 2d 120, ¶18.

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No. 2023AP903-CR

¶30 The record reflects that A.B. testified at the restitution hearing that
after she and C.D. were released from the hospital, they “decided not to go back to
the house” and therefore incurred hotel expenses.6 She testified that when they
relocated out of town, they had to hire movers to pack and move their belongings
because they could not do it themselves. During cross-examination, A.B. testified
that it was not possible for them “mentally” to return to the house and it was not
physically possible immediately after the crime. When questioned about the
physical possibility of living there, A.B. testified:

A man broke into our house, and we have no idea how he
got in. How could you feel safe in your home if a man got
into your house, and you have absolutely no idea how he
got in? It isn’t possible to live in a position like that.

¶31 Allen argues that A.B. failed to meet her burden to prove that the
residence was substantially damaged and unlivable due to the crime; that she
failed to present a psychological or medical professional who could testify that the
victims had to move for psychological or medical reasons; that the moving
expenses were entirely voluntary and not supported by testimony or evidence; and
that A.B.’s fear that Allen would return and endanger her safety was foreclosed by
him being sentenced to forty years of confinement in his term of imprisonment.
We reject Allen’s arguments. Expert testimony on psychological health or
physical impossibility of habitability was not required. A.B.’s testimony was
sufficient to establish a factual basis for the expenses included in the restitution
order.

6
We note that while only A.B. testified at the restitution hearing, the expenses incurred
appeared to cover both A.B. and C.D.’s costs. We refer to both victims for ease of reading.

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No. 2023AP903-CR

¶32 We begin with whether there is a sufficient causal nexus between the
crime—the brutal home invasion, and the damages—relocation expenses. “In
proving causation, a victim must show that the defendant’s criminal activity was a
‘substantial factor’ in causing damage.” Canady, 234 Wis. 2d 261, ¶9. The
record reflects that the victims experienced a violent and traumatic event in their
home when Allen broke in late at night and began stabbing them in their bed and
threatening to kill their unborn baby. We conclude that Allen was a substantial
factor because he was the only actor in this crime, and these costs were a “natural
consequence” of the home invasion. Id. We conclude a sufficient causal nexus
has been established.

¶33 Next, we turn to the question of whether relocation expenses can be
considered damages under the restitution statute. The circuit court reviewed the
restitution statute and case law and concluded that the relocation expenses were
“special damages” under WIS. STAT. § 973.20(5)(a).

¶34 WISCONSIN STAT. § 973.20(5)(a) provides that the defendant may be
required to pay as restitution “all special damages, but not general damages,
substantiated by evidence in the record, which could be recovered in a civil action
against the defendant for his or her conduct in the commission of a crime
considered at sentencing.” “The ‘special damage’ limitation within the restitution
statutes restrains the [circuit] court from assessing damages intended to generally
compensate the victim for damages such as pain and suffering, anguish or
humiliation which are often experienced by crime victims.” State v. Behnke, 203
Wis. 2d 43, 60, 553 N.W.2d 265 (Ct. App. 1996), overruled on other grounds by
State v. Johnson, 2023 WI 39, 407 Wis. 2d 195, 990 N.W.2d 174 (citation
omitted). However, “[a]ny readily ascertainable pecuniary expenditure paid out

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No. 2023AP903-CR

because of the crime is appropriate as special damages.” State v. Holmgren, 229
Wis. 2d 358, 365, 599 N.W.2d 876 (Ct. App. 1999).

¶35 Behnke provides an apt illustration of the determination of special
damages as restitution. In Behnke, we upheld a restitution order for the cost of a
new lock at the victim’s residence, even though the underlying offense did not
take place there. Id., 203 Wis. 2d at 60. The victim testified that “she bought the
lock two months after the attack because Behnke knew where she lived” and she
feared him escaping from custody. Id. We upheld the circuit court’s conclusions
that “the need for a lock was a consequence of Behnke’s acts” and thus the new
lock was a special damage entitled to restitution. Id.

¶36 We conclude that the circuit court acted within its discretion when it
concluded that the relocation expenses, including the hotel and movers, were
special damages and were entitled to restitution. A.B.’s testimony established that
it was physically impossible for them to return to the house immediately after their
releases from the hospital due to the conditions of the property after the crime.
Her testimony then established it was psychologically harmful for them to return
to the house where they had been attacked due to fear and trauma. A.B.’s
testimony supports that this “specific expenditure” was incurred because of the
crime. Id. at 61. A.B.’s claim was a “readily ascertainable pecuniary loss” and
thus a “special damage” for which restitution is appropriate by statute. Id. at 60-
61.

¶37 The record reflects that the relocation expenses were not offered as
general compensation for the trauma of the crime, but to compensate the victims
for specific expenses incurred when it was not possible to live in their house after
the crime for physical and psychological reasons. The relocation expenses were

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No. 2023AP903-CR

special damages. A.B. satisfied her burden to prove her damages. WIS. STAT.
§ 973.20(14)(a).

¶38 We conclude that the circuit court considered the relevant facts in
the record under the applicable standard of law and reached a rational decision that
a reasonable court could reach. Canady, 234 Wis. 2d 261, ¶6. We therefore
sustain the circuit court’s restitution order.

CONCLUSION

¶39 For the reasons stated above, we affirm Allen’s judgment of
conviction.

By the Court.—Judgment affirmed.

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

15