State v. Bruce Terrell Davis

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 2, 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. 2020AP1051-CR Cir. Ct. No. 2011CF5030

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRUCE TERRELL DAVIS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEAN A. DiMOTTO and MICHELLE ACKERMAN
HAVAS, Judges. Affirmed.

Before Donald, P.J., Dugan and White, 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).
No. 2020AP1051-CR

¶1 PER CURIAM. Bruce Terrell Davis appeals from a judgment of
conviction for one count of robbery and three counts of burglary, and an order of
the circuit court denying his motion for postconviction relief. On appeal, he
argues that the circuit court’s credibility determinations from the hearing on his
postconviction motion were clearly erroneous and, thus, the circuit court erred in
denying his motion. He also argues that the circuit court erred when it found that
his right to present a defense was not violated when the trial court removed photos
from the manila folders used for conducting the photo array that Oliver1 viewed,
and sent the loose photos to the jury room during deliberations.

¶2 We conclude that the circuit court’s credibility determinations are
not clearly erroneous. Thus, we uphold the circuit court’s denial of Davis’s
motion. We further conclude that the trial court’s decision to provide the jury with
loose photographs did not violate Davis’s right to present a defense because the
manila folders accompanying those photos were not essential to his defense.
Accordingly, we affirm.

BACKGROUND

¶3 Davis was arrested on October 3, 2011, and then charged on
October 19, 2011, with one count of robbery (use of force) and three counts of
burglary (building or dwelling) for break-ins that occurred in three homes in
August and September 2011 in the residential area surrounding UW-Milwaukee’s

1
We use pseudonyms to refer to the victims in this case for ease of reference and to
protect the victims’ identities.

2
No. 2020AP1051-CR

campus.2 During two of the break-ins, a man entered a residence and took a
valuable item, such as a laptop, that was left out in the open, and the occupants
engaged the man in a physical altercation in an attempt to retrieve the item. In the
third break-in, the occupant heard noises coming from her living room, and when
she realized it was a stranger, she quietly went to her bedroom and closed the
door. She waited until she no longer heard any noises, left her bedroom, and
found that her fiancé’s computer and game console were missing.

¶4 Over the course of the pretrial proceedings, Davis filed several
motions to suppress evidence. As relevant here, Davis filed one motion to
suppress evidence on April 13, 2012, and another motion on September 26, 2012.
In each motion, Davis argued that the police had no specific or articulable facts
that amounted to reasonable suspicion of criminal activity to be able to stop Davis
on October 3, 2011. In particular, Davis argued that knocking on a front door, as
the officers alleged he was doing, was not suspicious criminal activity for which
the police would be able to approach Davis, guns drawn, and order Davis to the
ground.3 Thus, he argued that the evidence—consisting mainly of his
identification and fingerprints—should be suppressed.

¶5 Davis additionally filed a motion to suppress the identification that
one of the victims (Margaret) made during a photo array because, as Davis argued,
the photo array was impermissibly suggestive and its admission violated his right

2
An additional misdemeanor charge of criminal trespass to a dwelling, as a repeater, for
a similar incident from September 29, 2011, was joined with these charges for purposes of trial.
This charge also added a fourth victim, Charles.
3
As noted below, the officers testified at the suppression hearing that they did not
approach Davis with guns drawn and did not order Davis to the ground.

3
No. 2020AP1051-CR

to due process. As Davis contended in his motion, Margaret identified photo
No. 3 during the photo array, but Davis’s photo was listed as photo No. 4 on the
photo lineup sheet. Thus, Davis argued that the identification should be
suppressed because of the likelihood that Davis was misidentified.

¶6 The trial court held an evidentiary hearing on November 27, 2012, to
address Davis’s motions to suppress evidence and suppress Margaret’s
identification.4 Officer Michael Murphy and Davis testified at the portion of the
hearing addressing Davis’s motion to suppress evidence, and Officer Gary
Cherone testified at the portion of the hearing addressing Davis’s motion to
suppress Margaret’s identification.5

¶7 At the hearing, Officer Murphy testified that he had investigated a
complaint of an entry into a residence at the end of September 2011 and that the
occupant, Charles, provided a description of the suspect and a description of what
happened when the suspect entered the house.6 Just days later, Officer Murphy

4
The Honorable Jean A. DiMotto presided over the suppression hearing and Davis’s
trial and sentencing. The Honorable Michelle Ackerman Havas presided over the hearing
addressing Davis’s postconviction motion and entered the orders denying Davis’s postconviction
motions. We refer to Judge DiMotto as the trial court and Judge Havas as the circuit court.
5
Margaret was unavailable to provide testimony at the hearing. The trial court took the
testimony of Officer Cherone and left the motion undecided until trial when it was able to take
Margaret’s testimony.
6
Officer Murphy testified that Charles described “a black male, approximately 6’1[”] in
height, 170 pounds, wearing a Minnesota Gophers purple lettermen style jacket” and “carrying a
purple Minnesota Vikings umbrella.” On cross-examination, Officer Murphy further provided
that Charles described being asleep on his couch when “a man comes in” and “asks for someone.”
Officer Murphy further testified that Charles described that he responded that “no such person
lives here” and the man left. The record did not indicate what Davis was wearing or carrying on
the day of his arrest, but the trial court dismissed any potential discrepancy in apparel saying that
it “wouldn’t expect” the suspect would be wearing “the same clothing or even carrying the same
umbrella” a few days later.

4
No. 2020AP1051-CR

was on patrol in the same general area of where the break-ins had occurred when
he “notice[d] an individual matching the description of what had been occurring”
on the front porch of a house knocking on the door. Officer Murphy approached
the individual to conduct a field interview and asked the individual “his name and
purpose of being at the location.” Officer Murphy testified “there was also a
portion of that interview that [the individual] claimed that he was there to speak to
a certain individual at the house,” but when Officer Murphy sought to confirm that
explanation, the occupants of the house denied knowing Davis or anyone Davis
claimed to be looking for.

¶8 Officer Murphy learned Davis’s identity when Davis provided a
photo I.D., and when Murphy ran Davis’s I.D., Murphy additionally learned that
there was an outstanding warrant for Davis’s arrest. Murphy then arrested Davis
on the outstanding warrant. Officer Murphy denied that he ever laid his hands on
Davis before the arrest or drew his weapon. Officer Murphy acknowledged that
“other officers responded almost simultaneous to me because they were also in the
area canvassing for the potential burglar.” When he was recalled, Officer Murphy
identified Officer James Hernandez as one of the other officers on the scene, and
he described that Officer Hernandez arrived “simultaneously” to him. Officer
Murphy testified that he never saw Officer Hernandez draw his gun.

¶9 In contrast, Davis testified that he was looking for his lost cell phone
that day and he was knocking on the door of the house where he thought he might
have left it. He testified that he was walking down the steps of the porch when
Officer Hernandez approached him with his gun drawn and ordered Davis to get to
the ground. Davis said that he complied and described that Officer Hernandez put
his foot on his back and that “Officer Murphy jumped out of his squad car and
came up to the scene” when Officer Hernandez was just starting to ask Davis what

5
No. 2020AP1051-CR

Davis was doing there. Davis described that Officer Murphy took Davis’s wallet
out of his pocket and obtained Davis’s I.D., while Officer Hernandez had Davis
pinned on the ground.

¶10 The trial court assessed the credibility of the witnesses in making its
ruling and found that “[t]here are some difficulties with [] Davis’s testimony.” In
particular, the trial court found that Davis was “internally inconsistent with his
own testimony” and Davis’s testimony “didn’t make sense” and “didn’t seem
reasonable.” The trial court also found that it did not find Davis to be credible
when he testified that he was looking for his cell phone that day because “[h]ow
many people think they left their cell phone somewhere, and have an idea that
maybe, this is where it was at this particular house?”

¶11 At the second part of the hearing, Officer Cherone testified about the
photo array. Officer Cherone testified that he conducted the photo array using six
photos—one photo of the suspect and five photos of individuals with a similar
appearance—that were placed in individual manila folders and then shuffled so he
would not know the order. He further testified that he had a photo lineup sheet for
his own use in conducting the photo array that listed the six photos placed in the
folders, along with the corresponding information on the subjects in the photo.
Officer Cherone testified that the photos in the manila folders were shown to
Margaret and the photo lineup sheet was not. He further stated that Margaret

6
No. 2020AP1051-CR

identified Davis’s photo, which was placed in the third manila folder, but that
Davis’s photo was placed fourth on the photo lineup sheet.7

¶12 The trial court took testimony from Margaret prior to the trial. In
her testimony, she confirmed the process used for the photo array consisted of
photos in manila folders, and she testified that she was 100% sure of her
identification. She also testified that this was not the first photo array that she saw
in connection with this case, but she did not identify anyone in the first photo
array. The trial court found that it was “satisfied from the full hearing, that is from
the testimony of Officer Cherone, and [Margaret] that the photo that was the one
chosen, if you will, by [Margaret] was in fact the photo of the Defendant.”

¶13 The case proceeded to a jury trial. The four victims testified at trial
regarding the break-ins that occurred in August and September 2011, and several
officers testified regarding the police investigation. Davis did not testify.

¶14 The victims and the officers testified regarding what occurred during
the break-ins, the investigation into the break-ins, including photo arrays and
interviews conducted with the victims, and the fingerprint analyses done on prints
recovered from the sites of the break-ins that were later determined to match
Davis’s prints. As particularly relevant here, the photo arrays conducted with
Charles, Margaret, and Oliver were all introduced into evidence and testimony

7
Later at trial, Officer Cherone testified that he knew that Margaret identified Davis’s
photo because he took the photos, while still in their manila folders and in the order shown to
Margaret, “back to the district to complete [his] supplemental report” and matched the photos in
the manila folders to the photos on the lineup sheet. Officer Cherone testified that Margaret
identified the photo in the third manila folder and he matched the photo in the third manila folder
to Davis’s photo, which was number four on the lineup sheet. He acknowledged on cross-
examination, though, that he did not have Margaret mark the photo, such as by signing or
initialing the back of the photo, in order to conclusively determine which photo Margaret chose.

7
No. 2020AP1051-CR

from the victims and the officers was taken regarding how each photo array was
conducted and that Davis was identified by each victim during the photo arrays.
Margaret testified that she was 100% sure of the identification that she made
during her photo array, and Oliver testified that he was only 60% sure of the
identification that he made during his photo array. As to the photo arrays
themselves, two of the photo arrays introduced into evidence during the trial, those
conducted with Charles and Oliver, included the manila folders used for
conducting the arrays, but for some unidentified reason the photo array conducted
with Margaret did not include the manila folders as part of the trial exhibits.

¶15 During the deliberations, the jury requested to see the photo arrays
conducted with Oliver and Margaret. After consulting the parties over what to
send to the jury room, the trial court removed the photos in the photo array that
Oliver viewed from the folders and sent the loose photos from the array to the jury
in the order shown to Oliver during the array. The trial court did this so that both
photo arrays would be sent to the jury in the same form, without manila folders.

¶16 Davis was ultimately convicted as charged and sentenced to a total
of twenty-one years and six months of imprisonment, bifurcated as seventeen
years of initial confinement and four years and six months of extended
supervision.

¶17 Davis filed his first postconviction motion in which he alleged that
he was entitled to a new trial because the State had committed a Brady8 violation
for failing to disclose a report about his arrest that was prepared by Officer

8
Brady v. Maryland, 373 U.S. 83 (1963).

8
No. 2020AP1051-CR

Hernandez,9 that Officer Murphy committed perjury at the suppression hearing,
that he received ineffective assistance of counsel, and that the trial court violated
his right to due process by not allowing him to show the jury “the deficiencies” in
the photo array that Margaret viewed. The circuit court granted Davis an
evidentiary hearing to address whether there was a Brady violation, whether
Officer Murphy committed perjury, and whether Davis received ineffective
assistance of counsel. Officer Hernandez, Officer Murphy, and Davis all testified
at the hearing.

¶18 Officer Hernandez testified that, on the day Davis was arrested, he
was on patrol as part of the police effort to look for “suspicious people that may
have been responsible for a recent uptake in daytime burglaries.” During his
patrol, he noticed a male individual who met the general description of the suspect
“walking down the porch” and “[h]e stopped abruptly, turned around, and went
back to the door and knocked on it.” Officer Hernandez testified that he continued
to watch him and “[h]e came down the porch, across the street, went to a different
house.” Officer Hernandez was concerned by the individual’s behavior and
decided to approach the individual to conduct a field interview. Officer
Hernandez testified that he “made the initial stop, but Officer Murphy arrived

9
After he was convicted, Davis obtained a report prepared by Officer Hernandez about
the arrest. According to Davis, this report conclusively establishes that Officer Hernandez, not
Officer Murphy, was the first to approach Davis.

9
No. 2020AP1051-CR

within seconds.”10 He described the interaction as “relatively cordial” and denied
that he used his firearm or laid his hands on Davis prior to Davis’s arrest.

¶19 Officer Hernandez described that Davis explained what he was
doing there by saying that he was looking for his friend, Kevin, but when Officer
Hernandez asked follow up questions, Davis could not provide Kevin’s last name
or where Kevin lived. Officer Hernandez said, “He explained to us that he was at
Kevin’s the previous night, playing poker; and he left his cell phone at the house.
But he couldn’t remember what the address was, so he was knocking on random
doors, hoping to find Kevin.”

¶20 Officer Murphy then testified that he was canvassing the area that
day because “there had been multiple burglaries in that area.” He testified that he
noticed Davis on the porch of a house and decided to talk to Davis. He further
testified that Officer Hernandez pulled up about the same time that he did, and
they arrested Davis after learning that there was a warrant out for Davis’s arrest.
On cross-examination, Officer Murphy was questioned about his original
testimony that he “alone” initiated the stop, but Officer Murphy could not recall
any testimony to that effect.

¶21 Davis testified last as to the events on the day that he was arrested,
and he again testified that he had lost his cell phone the day before while he was

10
Officer Hernandez was questioned regarding the time stamps on the Computer Aided
Dispatch (CAD) report associated with the day of Davis’s arrest. He explained that the time
stamps on the CAD report might not be entirely accurate depending on when an officer decides to
call in his location to the dispatcher. Thus, the fact that the CAD report indicated that Officer
Hernandez arrived at 12:57 p.m. and Officer Murphy arrived at 1:02 p.m. might not be the most
accurate indicator of when each officer arrived on the scene the day of Davis’s arrest. Officer
Murphy provided similar testimony.

10
No. 2020AP1051-CR

out with some friends, and he was trying to find it. He testified that, as he walked
off the porch of a house, Office Hernandez “pulled up on me with his gun drawn,
ordering me to the ground at gunpoint.” Davis described that Officer Hernandez
“put his foot on my back” and “about five minutes later, as the CAD report
correctly illustrates, Officer Murphy arrived on the scene of the crime.” Davis
further testified:

[Murphy] wasn’t there when Hernandez initially saw me
standing on the porch. He wasn’t there when I walked off
the porch. He wasn’t there when Hernandez turned his
squad car around and came back and got out of his squad
car and was talking to me.

He came up exactly five minutes after this incident
had taken place. He was over on Maryland, which is
exactly six blocks away from Cramer Street[.]

¶22 As to the issue of whether the officers had reasonable suspicion to
stop Davis, the circuit court said, “What I do find today though is that Officer[s]
Hernandez and Murphy, I find their accounts of what happened here to be
credible. They both spoke of, essentially, arriving simultaneously.” The circuit
court continued, “Now, that leads me to see that today, [] Davis seems to be
conforming his testimony to match the documentation.” The circuit court noted
that Davis appeared to have conformed his testimony to the CAD report when
Davis testified that Officer Murphy arrived “exactly” five minutes after Officer
Hernandez approached him. The circuit court also identified that Davis at one
point also testified at the pretrial hearing that he did not answer the officers when
they asked what Davis was doing on the porch of a nearby house. The circuit
court also addressed the issue regarding any inconsistency with Officer Murphy’s
original testimony, saying that Officer Murphy never testified at the first hearing
that he was the only one present and has always acknowledged that there were
other officers on the scene with him.

11
No. 2020AP1051-CR

¶23 Assessing the testimony from the original hearing and the
subsequent hearing led the circuit court to say, “I find that Officer Hernandez and
Officer Murphy are more credible.” The circuit court then stated:

So as to the credibility, I find that there was
reasonable suspicion to stop [] Davis. He fit the
description—the physical description—in the same area at
the same time of day.

His story was—they found not to be credible. And
they—Officer Murphy even went the further step of
knocking on the door, saying, “Do you know this person?”
And the homeowner who was there said they did not. I
think that that is credible.

¶24 As to the question of whether the trial court erred in sending loose
photographs to the jury, the circuit court found no issue with the trial court’s
actions because “essentially, what the jury was asking for is, [‘]We want to see the
six pictures that were shown to the jury or that were shown to the witnesses, that
they did that.[’]” As a result, the circuit court found that the trial court reasonably
exercised its discretion and did not violate Davis’s right to present a defense.

¶25 The circuit court denied Davis’s motion, and Davis appealed. Due
to a change in counsel, the appeal was voluntarily dismissed, and Davis filed the
supplemental postconviction motion that underlies this appeal. In his
supplemental motion, Davis asked the circuit court to reconsider its prior decision
on his postconviction motion and raised additional arguments regarding his claims
of ineffective assistance of counsel and perjury from Officer Murphy. The circuit
court denied the motion, and Davis again appealed.

DISCUSSION

¶26 On appeal, Davis raises two main arguments. First, Davis argues
that the circuit court erred in denying his postconviction motion because the denial

12
No. 2020AP1051-CR

was based on credibility determinations that are clearly erroneous. Second, Davis
argues that the circuit court erred in finding that his right to present a defense
regarding the alleged deficiencies in the photo array that Margaret viewed was not
violated by the trial court’s decision to send loose photographs from the photo
array that Oliver viewed to the jury during deliberations.

I. The Circuit Court’s Credibility Determinations

¶27 Davis argues that the circuit court erred when it found the testimony
of Officers Hernandez and Murphy more credible than the testimony from Davis,
and subsequently denied Davis’s postconviction motion. In particular, Davis
contends that the circuit court’s credibility determination is clearly erroneous
because Officer Murphy’s original testimony was perjured, Officer Hernandez and
Officer Murphy conformed their testimony at the postconviction hearing to
subsequently revealed evidence, Davis’s testimony remained consistent from the
first and second hearings, and Officer Murphy’s testimony changed from the first
hearing to the second hearing. Without credible testimony from Officers Murphy
and Hernandez that they had a non-confrontational and relatively cordial
interaction with Davis, Davis argues that there were no articulable facts to support
a stop involving firearms and being ordered to the ground. We disagree.

¶28 “When the circuit court acts as the finder of fact, it is the ultimate
arbiter of the credibility of the witnesses and the weight to be given to each
witness’s testimony.” State v. Peppertree Resort Villas, Inc., 2002 WI App 207,
¶19, 257 Wis. 2d 421, 651 N.W.2d 345. We are bound by the circuit court’s
credibility determinations, and we will not overturn the circuit court’s findings of
fact unless they are clearly erroneous. See WIS. STAT. § 805.17(2) (2019-20)
(“Findings of fact shall not be set aside unless clearly erroneous, and due regard

13
No. 2020AP1051-CR

shall be given to the opportunity of the trial court to judge the credibility of the
witnesses.”).11 In this case, we discern no error, clear or otherwise, in the circuit
court’s decision to credit the testimony from Officers Murphy and Hernandez, and
thus, we uphold the decision to deny Davis’s motion.

¶29 Davis argues that Officer Murphy’s testimony from the first hearing
to the second hearing is inconsistent, mainly based on Officer Murphy’s
description of the presence of other officers at the scene and his initial testimony
that he approached Davis first. Davis makes too much of Officer Murphy’s
testimony that he, and not Officer Hernandez, was the first to approach Davis.
Officer Murphy testified that Officer Hernandez arrived “simultaneous” to him,
and Officer Hernandez later described that he and Officer Murphy “converged” on
Davis at the same time. Officer Murphy never denied that there were other
officers present on the day of Davis’s arrest, and Officer Murphy consistently
testified that other officers—including Officer Hernandez—arrived simultaneous
to him. Thus, there is nothing in the record suggesting that Officer Murphy
“clearly lied” at the first motion hearing in the way he originally described the
interaction with Davis that day.

¶30 Davis also argues that the officers “finally got their stories mostly
straight,” i.e., clearly conformed their testimony to documentation of the arrest,
and their testimony should be rejected for this reason. However, we agree with the
circuit court that a review of the record reveals that the opposite is true. The
hearing transcript instead reveals a proclivity on Davis’s part to conform his

11
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

14
No. 2020AP1051-CR

testimony to the CAD report that was discussed heavily at the postconviction
hearing. At the original suppression hearing, Davis never suggested that there was
any lag between Officer Hernandez’s arrival and Officer Murphy’s arrival.
Instead, Davis’s original testimony paralleled the testimony of both officers that
they arrived simultaneously when Davis testified that “Officer Murphy jumped out
of his squad car and came up to the scene” at the time when Officer Hernandez
asked Davis what he was doing there.

¶31 Consequently, it is Davis’s testimony that has since changed to
where he now testified at the postconviction hearing that there were “exactly” five
minutes between when Officer Hernandez stopped him and Officer Murphy
arrived on the scene and removed Davis’s wallet from his pocket, “as the CAD
report correctly illustrates.” Accepting this as true would also necessarily lead to
the conclusion that Davis was on the ground on his stomach with Officer
Hernandez’s foot on his back and gun pointed at Davis for about five minutes
when Davis, from this position on the ground, identifies Officer Murphy as now
present on the scene.

¶32 The circuit court’s decision to discredit Davis’s testimony to this
effect and, instead, credit the testimony from the officers about how the interaction
between the officers and Davis occurred is not clearly erroneous. Thus, accepting
the officers’ version of events, the circuit court properly denied Davis’s motion.

II. Davis’s Right to Present a Defense

¶33 Davis argues that the circuit court also erred when it found that the
trial court’s decision to send loose photos—not in their manila folders—of the
photo array that Oliver viewed to the jury did not violate Davis’s right to present a
defense regarding the alleged deficiencies in the photo array that Margaret viewed.

15
No. 2020AP1051-CR

We are not persuaded that the trial court’s decision to remove the photographs
from the photo array that Oliver viewed from their manila folders and send just the
photographs to the jury violated Davis’s right to present a defense about alleged
deficiencies in the photo array that Margaret viewed.

¶34 A criminal defendant has a constitutional right to present a defense.
State v. Schmidt, 2016 WI App 45, ¶71, 370 Wis. 2d 139, 884 N.W.2d 510.

At a more general level, the test for whether the exclusion
of evidence violates the right to present a defense has been
stated as an inquiry into whether the proffered evidence
was “essential to” the defense, and whether without the
proffered evidence, the defendant had “no reasonable
means of defending his case.”

State v. Williams, 2002 WI 58, ¶70, 253 Wis. 2d 99, 644 N.W.2d 919 (citation
omitted). Whether a defendant’s right to present a defense has been violated is a
question of law that we review de novo. See Schmidt, 370 Wis. 2d 139, ¶72.

¶35 Davis argues that the trial court’s decision to remove the photos
from the manila folders from the photo array that Oliver viewed altered the
evidence introduced at trial and “severely undermined” his defense because of
how he questioned the reliability of the photo array that Margaret viewed, and the
jury’s careful questioning of the photo arrays during deliberations. We disagree
and conclude that there is no way that the manila folders in the photo array that
Oliver viewed can be called essential to Davis’s defense.

¶36 In his brief, Davis explained his defense regarding Margaret’s
identification of him in the photo array that she was shown:

Here, defense counsel argued in closing that
[Margaret’s] identification of Davis in the photo array was
subject to question. That is, on the print-out sheet, Davis
was in position four, but [Margaret] picked out the photo
that was in the third envelope shown to her. Further, the

16
No. 2020AP1051-CR

police did not have [Margaret] sign the back of the photo
she identified. Thus, the only evidence of whom
[Margaret] identified is the recollection of the police
officer.

Although Davis notes that “[u]nlike the photo array shown to [Oliver], with
[Margaret] the [S]tate never introduced the envelopes that contained the pictures,”
he never made any argument during the trial as a part of his defense about the fact
that the manila folders in the photo array shown to Margaret were not introduced
into evidence. Instead, his defense focused on which photo Margaret chose in the
photo array that she was shown.

¶37 Davis never argued in his brief, let alone explained on appeal, how
not sending the manila folders from the photo array that Oliver viewed affected his
theory of defense—that Margaret did not pick out Davis’s photo in the photo array
she was shown. Rather, Davis makes the conclusory assertion that:

The manila folders were an integral part of the
exhibit, and they were an integral part of the photo array.
That is, the folders were part of the procedure used to
display the photos to the witness. By removing the
photographs from folders, the judge was implicitly sending
the message to the jury that the folders are not an essential
part of a photo array.

Although Davis contends that the manila folders were an integral part of the photo
array, he does not explain how or why they were an integral part of his defense—
namely, that Margaret did not pick Davis out of the array because she picked out

17
No. 2020AP1051-CR

the photo that was in the third envelope12 shown to her while, on the print-out
sheet, Davis was in position four.13

¶38 We conclude that the manila folders did not play any role in Davis’s
chosen defense—that Margaret did not, in fact, pick Davis out of the array. As the
State points out, “[t]he unremarkable manila folders from [the photo array that
Oliver viewed] would have provided no insight into whether [Margaret] picked
out Davis” in the photo array that she viewed. Thus, the trial court did not deny
Davis his right to present his defense when it did not send the manila folders from
the photo array that Oliver viewed to the jury.

¶39 We also reject Davis’s reliance on State v. Johnson, 118 Wis. 2d
472, 479-81, 348 N.W.2d 196 (Ct. App. 1984) (concluding that the trial court’s
decision denying the jury an opportunity to see photographs was a violation of the
defendant’s right to present a defense because without the photos, the defendant
“had no reasonable means of defending his case”). As apparent from the extensive
testimony about the photo arrays during trial, Davis had a reasonable means of
defending his case. Moreover, Johnson involved a complete denial of the
defendant’s request that photos be sent into the jury room during deliberations.
See id. at 479-80. That is not the case here, where the photos were requested by

12
As shown in Davis’s arguments, there is no dispute that the manila folders were used
in the viewing of both photo arrays by Margaret and Oliver.
13
This assertion that Margaret picked out a different photo is speculative, undeveloped,
and not supported by citation to any legal authority. Thus, we decline to further consider the
assertion. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

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No. 2020AP1051-CR

the jury and were sent to the jury room. Accordingly, we reject Davis’s argument
that the trial court violated his right to present a defense.14

CONCLUSION

¶40 We uphold the circuit court’s credibility determinations and, thus,
reject Davis’s argument that he was unlawfully arrested when, as he claims,
Officer Hernandez approached him with his gun drawn and ordered him to the
ground. We further reject Davis’s argument that the trial court violated his right to
present a defense when it removed the manila folders from the photos used in the
photo array that Oliver viewed, and sent the loose photos to the jury during
deliberations. Accordingly, we affirm.

By the Court.—Judgment and order affirmed.

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

14
Because we address Davis’s argument on the merits, we do not address the State’s
argument that any error on the trial court’s part is harmless. See State v. Blalock, 150 Wis. 2d
688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest possible
ground[.]”).

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