State v. Romance Xavier Gunn

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.
April 15, 2025
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. 2023AP1591-CR Cir. Ct. No. 2019CF4289

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROMANCE XAVIER GUNN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Colón, 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. 2023AP1591-CR

¶1 PER CURIAM. Romance Xavier Gunn appeals from a judgment of
conviction entered after a jury trial in which he was found guilty of five felonies
and an order denying his postconviction motion requesting a new sentencing
hearing. He argues that the trial court erroneously struck a potential juror for
cause, and that trial counsel was ineffective for failing to find and present
mitigating circumstances at sentencing. We reject Gunn’s arguments and affirm.

BACKGROUND

¶2 According to the criminal complaint, on September 19, 2019, Gunn
participated in a gunfight, shooting across a Milwaukee street. Joanna, who was
driving down the street, was caught in the cross-fire and killed by a stray bullet.1
Two children and Joanna’s twin sister were passengers in the car at the time.
Gunn was charged with first-degree reckless homicide using a dangerous weapon
as a party to a crime and possession of a firearm by a felon. Subsequently, three
charges of first-degree recklessly endangering safety using a dangerous weapon as
a party to a crime were added.

¶3 Gunn proceeded to trial and a jury found him guilty of all five counts
as charged. Gunn was sentenced to thirty years of initial confinement and twenty
years of extended supervision.2

1
Although not required by WIS. STAT. RULE 809.86 (2023-24), we refer to the homicide
victim in this case using a pseudonym to protect her family’s privacy. We adopt the pseudonym
used by Gunn on appeal. All references to the Wisconsin Statutes are to the 2023-24 version
unless otherwise noted.
2
After the jury trial, Gunn’s attorney withdrew, and new counsel was appointed to
represent Gunn at sentencing.

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No. 2023AP1591-CR

¶4 Gunn filed a postconviction motion seeking a new sentencing
hearing on the grounds that trial counsel was ineffective for failing to find and
present mitigating circumstances at sentencing. The motion included a five-page
report prepared by Badger State Investigative Services, LLC, which provided a
detailed history of Gunn’s upbringing, neglect by his parents, incidents of sexual
abuse, homelessness, and personal losses, such as the death of his mother when
Gunn was fourteen.3 The letter also noted that Gunn was previously employed at
McDonalds for six to nine months, was viewed as a hard working crew member
who got along well with others, and his former boss was willing to hire Gunn
again if he became available to work.

¶5 The trial court denied Gunn’s postconviction motion without a
hearing. The court found that even if trial counsel performed deficiently, the
proffered mitigating factors “would not have altered the court’s sentencing
decision in any respect.” The court also noted that Gunn refused to be interviewed
by the presentence investigation writer, and had Gunn agreed to be interviewed, he
could have provided the writer with the information that he now presents as
mitigating. Gunn appeals. Additional relevant facts are discussed below.

DISCUSSION

¶6 On appeal, Gunn argues that the trial court erred in removing one of
the potential jurors for cause. Gunn additionally renews his argument that trial

3
The report indicated that the information was obtained from interviews with multiple
people, including Gunn, several of his family members, his children’s mother, and his former
boss. Additionally, information was obtained from Gunn’s student records, juvenile records, and
criminal court files.

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No. 2023AP1591-CR

counsel was ineffective for failing to find and present mitigating factors at
sentencing. We address each of Gunn’s arguments below.

I. Juror Challenge

¶7 Relevant to this appeal, during voir dire, the State inquired whether
any of the jurors had “any kind of bias or preconceived idea that they would never
convict someone, for example, if they didn’t hear DNA evidence or any other
particular kind of evidence[.]” Juror 3 responded that, “I work as a security
consultant, and I think that a lot of times eyewitness testimony is inherently
faulty.” The following exchange then occurred:

[Prosecutor]: Okay. Do you understand that all eyewitness
testimony isn’t necessarily apparently faulty, though?

[Juror 3]: That’s true but I have found that there’s different
things like time dilation or—

[Trial Court]: Hang on. We’re not going there. We’re not
going there. I don’t want a speech from any of the jurors.
Answer the district attorney’s questions and that’s it.
Please, don’t go there.

[Juror 3]: Okay.

[Prosecutor]: So I think if I understand correctly that you
have some maybe even professional experience where the
issues of like aspects that can impact the reliability of
eyewitness testimony, something you’re familiar with; is
that correct?

[Juror 3]: That’s correct.

Subsequently, when asked about listening to the testimony and applying the law
without reliance on any preconceived notions about eyewitness testimony, Juror 3
responded, “I would do my best, yes.”

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No. 2023AP1591-CR

¶8 Later, while discussing strikes for cause with the parties, the trial
court referenced Juror 3. The court stated:

Juror No. 3 is a white male. He has what’s clearly a female
name. Now what his gender is or what he wishes his
gender to be is not my concern. My concern would be
that—and I really don’t like it when jurors do this—when
they start to go off on a tangent and tell the jury or tell the
lawyers or tell the court how things work. And he said he’s
a security guard and said, well, I know that—[]he said
something like witness identifications are notoriously
unreliable. That’s off of memory. Then he started piping
up with some theory or acronym or some program or
alleged evidence that he believes this to be the case from.
I’m very concerned about Juror 3.

¶9 The State responded that Juror 3’s statements about “his beliefs on
eyewitness testimony suggests that he … might shut down with it and not really
evaluate it because he holds a preconceived notion[.]”

¶10 Gunn’s attorney responded that he “appreciate[d] everyone’s
position” and noted that Juror 3 “did say he could be fair.” However, Gunn’s
attorney then stated that the State “could use one of their strikes.”

¶11 The trial court struck Juror 3 for cause. The court agreed with the
State, noting that based on Juror 3’s “body language [and] his volunteering of
information” it appeared that Juror 3 “had a chip-on-his shoulder attitude about
basically, well, eyewitness testimony is inherently unreliable or no one believes
that.” The court did not believe that Juror 3 could be fair and impartial and
“would be disinclined to listen to my orders.”

¶12 Gunn argues that the trial court should not have struck Juror 3.
Gunn contends that the court’s concerns about Juror 3 were not supported by the
record and Juror 3 was not objectively biased. Gunn also suggests that the court
had a discriminatory reason for striking Juror 3, or in other words, committed a

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No. 2023AP1591-CR

Batson violation. See Batson v. Kentucky, 476 U.S. 79 (1986). According to
Gunn, “[t]he strike may have underlying gender based discrimination.”

¶13 The State responds that Gunn’s arguments are not properly before
this court. We agree. Even if we were to construe Gunn’s attorney’s statement
that Juror 3 “did say that he could be fair” as an objection, Gunn’s attorney’s
subsequent statement that the State “could use one of their strikes” relinquished
any challenge to Juror 3’s removal. Moreover, the objection lacked any
specificity. Gunn’s attorney did not object to the removal of Juror 3 on Batson
grounds. See State v. Jones, 218 Wis. 2d 599, 601, 581 N.W.2d 561 (Ct. App.
1998) (“[T]he defendant must make a Batson objection prior to the time the jury is
sworn. If the objection is not made until after that time, the issue is [forfeited].”);
see also State v. Nielsen, 2001 WI App 192, ¶11, 247 Wis. 2d 466, 634 N.W.2d
325 (“[T]o preserve a proposed trial court error for review, trial counsel or the
party must object in a timely fashion with specificity to allow the court and
counsel to review the objection and correct any potential error.”).

¶14 Lastly, even if we were to find Gunn’s challenge was preserved and
the trial court’s decision was erroneous, any error was harmless. See State v.
Mendoza, 227 Wis. 2d 838, 863-64, 596 N.W.2d 736 (1999) (holding that when a
trial court erroneously strikes a prospective juror for cause, reversal is not
automatic and we employ a harmless error analysis). An error is harmless when it
does not effect the substantial rights of the party seeking reversal of the judgment.
Id. at 864. Gunn does not make any argument that the jury ultimately selected to
hear his case was biased or impartial. Id. Additionally, Juror 3 was struck for
cause, not by a peremptory strike. Batson only applies to peremptory strikes. See
id., 476 U.S. at 96; State v. James, No. 2014AP2230-CR, unpublished slip op.,

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No. 2023AP1591-CR

¶23 (WI App Aug. 25, 2015) (stating that Batson and every case since has made it
clear that discriminatory intent is based solely on peremptory strikes).4

¶15 Therefore, we conclude that Gunn is not entitled to any relief on his
juror removal challenge.

II. Ineffective Assistance of Counsel at Sentencing

¶16 To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient and that the
defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668,
687 (1984). We need not address both prongs of the test if the defendant does not
make a sufficient showing on one of the prongs. Id. at 697.

¶17 As a preliminary matter, we note that Gunn requests a new
sentencing hearing. However, an evidentiary hearing is “required before a court
may conclude a defendant received ineffective assistance.” State v. Sholar, 2018
WI 53, ¶53, 381 Wis. 2d 560, 912 N.W.2d 89; State v. Machner, 92 Wis. 2d 797,
804, 285 N.W.2d 905 (Ct. App. 1979). Thus, we evaluate whether Gunn is
entitled to an evidentiary hearing.

¶18 When deciding whether a defendant is entitled to an evidentiary
hearing, 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

4
Pursuant to WIS. STAT. RULE 809.23(3)(b), an unpublished authored opinion issued
after July 1, 2009, may be cited for its persuasive value.

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No. 2023AP1591-CR

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 motion does not raise
facts sufficient to entitle the defendant to relief, or if it presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is not
entitled to relief, the [trial] court has the discretion to grant or deny a hearing.”
Ruffin, 401 Wis. 2d 619, ¶28.

¶19 Here, the record conclusively demonstrates that Gunn is not entitled
to relief. Even if we assume that trial counsel performed deficiently, Gunn was
not prejudiced. To establish prejudice, Gunn needed to show that but for
counsel’s error, “there is a reasonable probability the result of the sentencing
hearing would have been different.” State v. Benson, 2012 WI App 101, ¶19, 344
Wis. 2d 126, 822 N.W.2d 484. As the postconviction decision found, there is not
a reasonable probability that the result of Gunn’s sentencing hearing would have
been different.

¶20 At sentencing, the State began by reading a victim impact statement
from Joanna’s mother. In the statement, Joanna’s mother talked about the
devastating impact of the loss of Joanna and having to raise Joanna’s son.
Joanna’s mother asked for the maximum sentence.

¶21 The State argued for a total of thirty-eight years of initial
confinement and twenty-eight years of extended supervision. The State
emphasized the seriousness of the offense, the need to protect the community for a
significant amount of time, the need to deter others in the community from
engaging in similar behavior, and Gunn’s lack of remorse.

¶22 Gunn’s attorney stated that he was not making a recommendation
because Gunn was maintaining his innocence. Gunn’s attorney, however, argued

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No. 2023AP1591-CR

that the State’s recommendation was too high based on the evidence of Gunn’s
culpability presented at trial and Gunn’s personal characteristics, including the fact
that Gunn lost his mother when he was young, Gunn was raised by his sister who
was only three or four years older than him, and Gunn’s father was absent when he
was younger.

¶23 Gunn exercised his right to allocution. Gunn did not provide any
additional information about his upbringing or his family. Gunn admitted that “I
was involved in this situation in a way, but I don’t feel I should be held
accountable for the death of [Joanna].” Gunn stated that he wanted justice for
Joanna and complained that he was the only one being held accountable.5

¶24 The trial court addressed the seriousness of the offense, the need to
protect the community, and Gunn’s character. As the State observes, the court’s
remarks reveal that it was focused on the seriousness of the offense and the
protection of the community.

¶25 During its sentencing remarks, the trial court first observed that there
was a “gunfight in broad daylight” with “multiple people turning a city street into
a war zone” and a “completely innocent victim doing nothing related to this
gunfight [was] killed … in front of two little kids and her sister.” The court stated
that the gravity of Gunn’s offense was “at least a nine-and-a-half on a scale of 1 to
10,” and Gunn and the others involved “showed no concern or no care for life, no
concern for this community, no concern for other citizens, no concern for anyone.”

5
We note that contrary to Gunn’s suggestion in his allocution, the record reflects that
two other people were in fact charged, convicted, and received prison sentences in relation to this
incident. Unlike Gunn, however, both individuals cooperated with the State and testified against
Gunn at trial.

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No. 2023AP1591-CR

The court stated that it was not “entirely clear at the trial exactly which bullet
killed the victim, but clearly Mr. Gunn participated in … a gunfight in broad
daylight[.]” The court stated that this case was “highly aggravated” and Gunn
“needs to be out of the community for a very, very lengthy period of time[.]”

¶26 In regards to Gunn’s character, the trial court noted Gunn’s prior
record, that he showed “what boarders on remorse,” and his lack of cooperation.
The court stated that “[a]nybody who is willing to engage in or even consider this
type of behavior needs years and years of rehabilitation.” The court, however,
made clear that rehabilitation was “not the primary focus of this sentence.”

¶27 At the conclusion of sentencing, the trial court stated that Gunn’s
sentence was “based on the totality of the circumstances, the gravity of this
offense, which is if not off the charts, is at the very, very high end of the chart, the
tragic loss of life in the community, [and] the need to protect the community[.]”
The trial court did not mention Gunn’s character.

¶28 Based on the trial court’s remarks, we are not persuaded “there is a
reasonable probability the result of the sentencing hearing would have been
different” if the additional information about Gunn’s background had been
presented. Benson, 344 Wis. 2d 126, ¶19. The court’s remarks focused on the
gravity of the offense and the protection of the community, not Gunn’s character.
Accordingly, Gunn has not established prejudice and we conclude that the trial
court properly denied Gunn’s postconviction motion without a hearing.

CONCLUSION

¶29 For all the reasons above, we reject Gunn’s arguments and affirm.

By the Court.—Judgment and order affirmed.

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No. 2023AP1591-CR

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

11