State v. Alexis Joel Reyes

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.
November 11, 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. 2018AP1523-CR Cir. Ct. No. 2017CF1510

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALEXIS JOEL REYES,

DEFENDANT-APPELLANT.

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

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.

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).

¶1 PER CURIAM. Alexis Reyes appeals a judgment convicting him,
after a jury trial, of one count of attempted first-degree intentional homicide as an
No. 2018AP1523-CR

act of domestic abuse and one count of first-degree reckless injury by use of a
dangerous weapon. See WIS. STAT. §§ 940.01(1)(a), 939.32, 968.075(1)(a),
940.23(1)(a), and 939.63(1)(b) (2019-20).1 Reyes argues two issues on appeal.
First, he argues that the circuit court erroneously exercised its discretion in
denying his motion for a mistrial. Second, he argues that the admission of a police
officer’s testimony that commented on another witness’s credibility constituted
plain error entitling him to a new trial. For the reasons discussed below, we reject
these arguments and affirm the judgment of the circuit court.

BACKGROUND

¶2 The criminal complaint alleged that the victim, C.A.R., had been in
his basement with his brother, Felix. Reyes was also present in the house, along
with his mother. C.A.R. went upstairs to retrieve some items and saw Reyes
coming toward him on the stairs. According to the complaint, Reyes stabbed
C.A.R. in the torso, arm, chest, and head. Felix heard a lot of noise and observed
C.A.R. coming down the stairs, bleeding profusely. Felix also saw Reyes standing
in the kitchen, holding a knife and saying, “don’t call the police.”

¶3 After a jury trial, Reyes was found guilty of attempted first-degree
intentional homicide, for which he was sentenced to twenty years of initial
confinement and seven years of extended supervision, and first-degree reckless
injury, for which he was sentenced to ten years of initial confinement and five
years of extended supervision. Reyes appealed. The appeal began as a no-merit
appeal pursuant to Anders v. California, 386 U.S. 738 (1967), and WIS. STAT.

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

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RULE 809.32. Upon the motion of Reyes’s appellate counsel, we rejected the no-
merit report and converted the case to an appeal under WIS. STAT. RULE 809.30.

DISCUSSION

¶4 As we now explain, upon the parties’ briefing of the two issues
raised on appeal following the rejection of the no-merit report, we conclude that
Reyes’s arguments as to those issues lack merit.

¶5 First, Reyes argues that the circuit court erred in denying his motion
for a mistrial. At the jury trial, Reyes’s mother, Liduvina Reyes, testified for the
defense. The State’s cross-examination of Liduvina included the following
exchange:

Q: Did you tell your son to leave the house after [he]—
after he stabbed [C.A.R.]?

THE COURT: Yes or no, ma’am?

A: Well, since [Reyes] was on probation, then Felix went
and called the police, [Reyes] got nervous.

THE COURT: Ma’am, the question is did you tell [Reyes]
to leave the house? Yes or no?

A: Yes. Because I was nervous. I told him that.

¶6 Outside the presence of the jury, Reyes’s trial counsel questioned
whether the reference to Reyes being on probation warranted a mistrial. The
circuit court determined that there was nothing the State had asked that “would
cause the witness to answer that way.” The court offered to instruct the jury to
disregard the fact that Reyes was on probation but advised against it because, as
the court put it, “that is sort of like pointing to that evidence.” Trial counsel
declined a curative instruction, and it could be reasonably inferred that counsel

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declined because she did not want to highlight the fact that Reyes was on
probation.

¶7 The record does not include any formal motion for a mistrial.
Nonetheless, the circuit court proceeded as if Reyes’s trial counsel had made such
a motion, and denied the request for a mistrial. On appeal, Reyes argues that the
denial was an erroneous exercise of the circuit court’s discretion. See State v.
Sigarroa, 2004 WI App 16, ¶24, 269 Wis. 2d 234, 674 N.W.2d 894 (“The denial
of a motion for a mistrial will be reversed only on a clear showing of an erroneous
use of discretion by the trial court.”).

¶8 A mistrial is not warranted unless, in light of the entire proceeding,
the basis for the mistrial motion is sufficiently prejudicial to warrant a new trial.
State v. Adams, 221 Wis. 2d 1, 17, 584 N.W.2d 695 (Ct. App. 1998). The party
seeking a mistrial has the burden of demonstrating that grounds exist for a mistrial.
State v. Harrell, 85 Wis. 2d 331, 337, 270 N.W.2d 428 (Ct. App. 1978). As
discussed below, Reyes has not meet this burden.

¶9 Reyes asserts that Liduvina’s testimony regarding his probation
status was not relevant and was unfairly prejudicial. The State concurs in its
respondent’s brief that Reyes’s probation status was not relevant, and this court
agrees that the testimony was not relevant. However, the State disputes Reyes’s
contention that the testimony at issue was given as a result of the State’s
questioning. We agree with the State on this point. The record is devoid of any
questioning by the State about Reyes’s probation status. Thus, we are satisfied
that the circuit court’s determination that there was nothing the State had asked
that “would cause the witness to answer that way” was not clearly erroneous.

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No. 2018AP1523-CR

¶10 Although the testimony about Reyes’s probation status was not
relevant, Reyes has failed to meet his burden of showing that the testimony was so
prejudicial as to warrant a new trial. See Sigarroa, 269 Wis. 2d 234, ¶24. The
record shows that, after Liduvina offered the unsolicited fact that Reyes was on
probation, the circuit court immediately redirected her testimony and clarified
what she was being asked. The court stated, “Ma’am, the question is did you tell
[Reyes] to leave the house? Yes or no?”

¶11 In addition, the record contains overwhelming proof of Reyes’s
guilt, such that the effect of Liduvina’s statement, if any, was minimal. The
evidence at trial included C.A.R.’s testimony that Reyes stabbed him, as well as
Felix’s testimony that he saw Reyes holding a knife right after the incident and
saw blood on the knife and on Reyes’s hand. Felix also testified that he observed
Liduvina standing behind Reyes and heard Liduvina “complaining to him about
what happened and why he [did] that.” In light of the whole proceeding, we
cannot conclude that the admission of Liduvina’s statement about Reyes’s
probation status was sufficiently prejudicial to warrant a new trial. See State v.
Pankow, 144 Wis. 2d 23, 47, 422 N.W.2d 913 (Ct. App. 1988). We conclude that
the circuit court did not erroneously exercise its discretion in denying Reyes’s
motion for a mistrial.

¶12 Reyes also argues that the admission of police testimony that
commented on another witness’s credibility constituted plain error entitling him to
a new trial. At trial, after the defense had rested its case, the State presented
rebuttal testimony of police detective Matthew Quist. Quist testified that Liduvina
told him that C.A.R. told her that Reyes had stabbed him. When asked about the
fact that Liduvina had testified earlier and denied saying that, Quist answered,

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No. 2018AP1523-CR

“Oh, she absolutely told me that. That’s a boldfaced lie.” Trial counsel did not
object to this testimony.

¶13 Reyes argues that the admission of Quist’s testimony about
Liduvina’s credibility was plain error under State v. Haseltine, 120 Wis. 2d 92,
96, 352 N.W.2d 673 (Ct. App. 1984). In Haseltine, this court held that “[n]o
witness, expert or otherwise, should be permitted to give an opinion that another
mentally and physically competent witness is telling the truth.” Id. The State
concedes that defense counsel’s failure to object to Quist’s testimony about
whether Liduvina was telling the truth at trial was plain error. We agree. The
plain error doctrine “allows appellate courts to review errors that were otherwise
waived by a party’s failure to object.” State v. Jorgensen, 2008 WI 60, ¶21, 310
Wis. 2d 138, 754 N.W.2d 77; see also WIS. STAT. § 901.03(4).

¶14 Given our conclusion that defense counsel’s failure to object to
Quist’s testimony about Liduvina’s credibility was plain error, the burden then
shifts to the State to show that the error was harmless. See Jorgensen, 310 Wis.
2d 138, ¶23. An error is harmless when it is clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent the error. State v.
Harris, 2008 WI 15, ¶43, 307 Wis. 2d 555, 745 N.W.2d 397. There are several
factors to aid in the harmless error analysis, including the frequency of the error,
the importance of the evidence that was admitted in error, the presence or absence
of evidence corroborating or contradicting the erroneously admitted evidence,
whether the erroneously admitted evidence duplicates untainted evidence, the
nature of the defense, and the nature and overall strength of the State’s case. State
v. Hale, 2005 WI 7, ¶61, 277 Wis. 2d 593, 691 N.W.2d 637.

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No. 2018AP1523-CR

¶15 Applying the factors for plain error analysis here, we conclude that
the State has met its burden of showing that the error was harmless. The State did
not refer to or repeat Quist’s testimony that Liduvina had lied, and the testimony
did not duplicate any untainted evidence. In fact, the record does not contain any
other evidence corroborating or contradicting Quist’s statement that Liduvina told
a lie when she denied telling Quist that C.A.R. said Reyes stabbed him.

¶16 In addition, Quist’s statement was not important because the jury
could reasonably conclude that Liduvina’s testimony was not credible even
without Quist saying so. For example, Liduvina testified that she was the first
person to go upstairs and see that C.A.R. had been injured, but her account
conflicted with Felix’s testimony that he went up first. Liduvina also testified that
C.A.R. told her that “something like a dog” attacked him, even though C.A.R. did
not say so in his own testimony, nor did Reyes argue as part of his defense that
C.A.R. was attacked by a dog. Rather, Reyes’s defense was that the State failed to
prove beyond a reasonable doubt that Reyes was the person who stabbed C.A.R.

¶17 The State presented ample evidence that Reyes was, indeed, the
person who stabbed C.A.R. with a knife. The erroneously admitted testimony
from Quist was not integral to the State’s case. In addition, C.A.R. testified that
he remembered being stabbed, and he identified Reyes in court as the person who
did it. C.A.R. testified that, even though he was stabbed in the back from behind,
he could tell it was Reyes. C.A.R. testified, “I was able to see him when I tried to
take the weapon from his hand, and then he grabbed me by the wrist and threw me
on the ground.” As discussed above, Felix testified that, when he came upstairs,
he observed Reyes holding a bloody knife and saw Liduvina standing behind
Reyes, “complaining to him about what happened and why he [did] that.” Finally,
Quist testified that Liduvina told him that “she saw [C.A.R.] come down the stairs,

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No. 2018AP1523-CR

that he was bleeding profusely from the head, arms and the torso and that he then
said to her that, [Reyes] stabbed me.” In light of all of the above, we conclude that
there is no reasonable possibility that the error in admitting Quist’s testimony
about Liduvina’s credibility contributed to the guilty verdict. See Hale, 277 Wis.
2d 593, ¶60. The error was, therefore, harmless and does not entitle Reyes to a
new trial.

By the Court.—Judgment affirmed.

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

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