State v. Tramayne D. Massie

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.
June 1, 2022
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. 2021AP378-CR Cir. Ct. No. 2018CF1197

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TRAMAYNE D. MASSIE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: MARK F. NIELSEN, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Kornblum, 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. 2021AP378-CR

¶1 PER CURIAM. Tramayne D. Massie appeals from a judgment of
conviction and an order denying his postconviction motion. Massie challenges
four of his seventeen convictions on grounds that: (1)his trial counsel
ineffectively impeached a witness; and (2) Massie was impermissibly punished
twice for the same conduct because two of the bail-jumping charges were
multiplicitous. We affirm.

BACKGROUND

¶2 On August 17, 2018, police were executing a search warrant when
they saw a woman furtively approach and enter the back seat of a parked car
containing Massie and his brother, Raymond Massie.1 When the officers walked
up to the car, they saw that Massie and Raymond were focused on a clear plastic
sandwich baggie on the center console. Raymond made eye contact with an
officer and yelled, “[p]olice, [p]olice, [p]olice, go, go, go.”

¶3 While this was happening, another officer said, “[h]ey, stop,
[p]olice,” and reached toward the car to stop Massie from moving the car or
running away. Massie and Raymond then got out of the moving car and tried to
run away. After the car hit a garage and stopped, an officer saw the woman in the
back seat drop crack cocaine on the floor. Officers chasing Massie also recovered
a bag containing crack cocaine and heroin that they saw Massie throw while
running away.

1
We will refer to Raymond Massie by his first name because he shares the same last
name as the appellant, Tramayne Massie.

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No. 2021AP378-CR

¶4 The State charged Massie with seventeen crimes.2 The following
crimes are relevant to this appeal: possession of heroin with intent to deliver
(count one); possession of cocaine with intent to deliver (count two); delivery of
cocaine (count three); and felony bail jumping (counts eight, eleven, twelve,
sixteen, and seventeen).

¶5 Massie pled not guilty, and the case proceeded to a jury trial. At the
trial, the State called several witnesses, including Raymond. Raymond testified
that he was sitting in Massie’s car when a woman got in. According to Raymond,
the woman and Massie exchanged money for cocaine. Raymond told the jury he
did not know Massie had drugs when Raymond got in the car.

¶6 Raymond further testified that Raymond had four prior convictions
and that he received an offer from the State in exchange for his testimony. On
cross-examination, Raymond elaborated that the State agreed to drop four felony
charges arising from this incident and charge him with misdemeanors.

¶7 The jury convicted Massie on all counts. The trial court sentenced
him to a total of twelve years of initial confinement and eight years of extended
supervision.

2
Specifically, Massie was charged with the following: (1) possession of heroin with
intent to deliver, as second or subsequent offense, see WIS. STAT. §§ 961.41(1m)(d)1,
939.50(3)(f), 961.48(1)(b); (2) possession of cocaine with intent to deliver, as a second or
subsequent offense, see §§ 961.41(1m)(cm)1g, 939.50(3)(g), 961.48(1)(b); (3) delivery of
cocaine, as a second or subsequent offense, see §§ 961.41(1)(cm)1g, 939.50(3)(g), 961.48(1)(b);
(4) second-degree recklessly endangering safety, see WIS. STAT. §§ 941.30(2),
939.50(3)(g); (5) obstructing an officer, see WIS. STAT. §§ 946.41(1), 939.51(3)(a);
and (6) twelve counts of felony bail jumping, see WIS. STAT. §§ 946.49(1)(b), 939.50(3)(h)
(2017-18).

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2021AP378-CR

¶8 Massie filed a postconviction motion for a new trial, arguing that his
trial counsel was ineffective. He also sought to vacate two of the bail-jumping
charges as multiplicitous. The trial court held a hearing pursuant to State v.
Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) and denied both
claims. On appeal, Massie raises the same two issues.

DISCUSSION

I. Ineffective Assistance of Trial Counsel

¶9 Massie alleges that he is entitled to a new trial on count three,
delivery of cocaine, and count eight, the related bail-jumping charge, because his
trial counsel did not adequately cross-examine Raymond on the full extent of the
consideration Raymond received for testifying. This claim lacks merit.

¶10 To establish ineffective assistance of counsel, a defendant must
prove: (1) deficient performance; and (2) prejudice. Strickland v. Washington,
466 U.S. 668, 687 (1984). To prove deficient performance, a defendant must
show specific acts or omissions of counsel that are “outside the wide range of
professionally competent assistance.” Id. at 690. There is a “strong presumption
that counsel acted reasonably within professional norms.” State v. Johnson, 153
Wis. 2d 121, 127, 449 N.W.2d 845 (1990).

¶11 To show prejudice, the defendant must show that the lawyer’s errors
were so serious that the defendant was deprived of a fair trial and a reliable
outcome. Strickland, 466 U.S. at 687. In order to succeed, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”

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No. 2021AP378-CR

Id. at 694. Whether counsel’s performance was deficient and whether that
deficient performance prejudiced the defense are questions of law we review
de novo. Johnson, 153 Wis. 2d at 128.

¶12 Massie claims that his trial counsel’s cross-examination of Raymond
was deficient because trial counsel did not fully explore the incentives Raymond
had to testify for the State. Massie contends that trial counsel should have
questioned Raymond about his prior convictions and the substantial reduction in
charges he received from the State. Massie claims this would have emphasized
Raymond’s lack of credibility and his willingness to “shade his testimony to
please the State.”3 This claim fails on both the deficiency and prejudice prongs.

¶13 Raymond explicitly testified on direct examination that he had four
prior convictions. There was no need for Massie’s trial counsel to elicit this
information again on cross-examination, and Massie was not prejudiced by his
lawyer’s failure to do so. See State v. Arredondo, 2004 WI App 7, ¶33, 269
Wis. 2d 369, 674 N.W.2d 647 (no prejudice where defendant admitted he lied to
police on direct examination); State v. Sohn, 193 Wis. 2d 346, 353, 535 N.W.2d 1
(Ct. App. 1995) (evidence of prior convictions admitted for impeachment purposes
under WIS. STAT. § 906.09 generally limited to asking witness if he or she has
been convicted of a crime and, if so, how many times).

3
In his reply brief, Massie asserts for the first time that his trial lawyer also should have
presented to the jury “the specific reduction in maximum penalties which [the trial judge] brought
up.” Not only is this issue conclusory and undeveloped, it is raised for the first time in a reply
brief, and we decline to address it. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992) (court need not consider undeveloped arguments); A.O. Smith Corp. v. Allstate
Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (court will generally not
address issues raised for the first time in a reply brief).

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No. 2021AP378-CR

¶14 Moreover, both the State and trial counsel explored the consideration
Raymond received for testifying. On direct examination, Raymond testified that
he received an offer of probation in exchange for his testimony:

Q Mr. Massie, have you received any consideration or an
offer from the State for your testimony today?

A Yes. Probation with no jail time.

….

Q Did we offer you misdemeanors or felonies?

A Yes. A misdemeanor obstruction, disorderly conduct.

Q Thank you. Would those be charges be from the
incident that occurred on August 17, 2018?

A They would.

On cross-examination, trial counsel followed up by asking Raymond about the
specific charges the State agreed to drop:

Q …. Mr. Massie, isn’t it true that you are currently facing
four charges as they relate to this incident?

A I am.

Q And those four charges include the possession with
intent to deliver heroin, possession with intent cocaine.
Manufacture and delivery of cocaine. Each a felony, as
well as one count of misdemeanor obstructing. Is that
correct?

A It is.

Q Each of these felonies further contains a second and
subsequent enhancer that would enhance your maximum
penalty on those felonies?

A It would.

Q Isn’t it true as well that as part of your testimony in this
matter, [the] State has agreed to recommend dropping those
felony charges, having you plead to misdemeanors which

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No. 2021AP378-CR

would not carry the threat of a prison sentence. Is that
correct?

A It is.

We conclude that the lawyer’s cross-examination of Raymond was reasonable.
The jury was aware that Raymond was facing substantial charges and that the
State agreed to a significant reduction in these charges in exchange for his
testimony.

¶15 Massie does not dispute that Raymond’s testimony shows he had an
incentive to testify for the State. Rather, in a one-sentence argument, Massie
argues that trial counsel should have requested a jury instruction indicating that the
State agreed not to use Raymond’s testimony against him. Not only do we find
this claim conclusory and undeveloped, see State v. Pettit, 171 Wis. 2d 627, 646-
47, 492 N.W.2d 633 (Ct. App. 1992) (we do not consider on appeal undeveloped
arguments), Massie fails to explain how this instruction would have undermined
Raymond’s credibility. Indeed, if anything, Raymond’s testimony shows that he
was truthful because he knew his testimony could not be later used against him.
For all of these reasons, we reject Massie’s ineffective-assistance-of-counsel
claim.

II. Multiplicity

¶16 We turn to Massie’s claim that two of his bail-jumping convictions
were multiplicitous. Both the state and federal constitutions protect a defendant
from being punished twice for the same offense. State v. Anderson, 219 Wis. 2d
739, 746, 580 N.W.2d 329 (1998). Multiplicitous charges, that is, charging a
single criminal offense in more than one count, are impermissible because they
violate the double-jeopardy provisions of the Wisconsin and United States

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No. 2021AP378-CR

Constitutions. Id. Whether an individual’s constitutional right to be free from
double jeopardy has been violated is a question of law we review de novo. Id.

¶17 We examine multiplicity claims using a two-part test. See State v.
Richter, 189 Wis. 2d 105, 108-09, 525 N.W.2d 168 (Ct. App. 1994). First, we
consider whether the charged offenses are identical in law and fact. Id. Then, we
consider whether the legislature intended to authorize multiple punishments. Id. at
109. If the first part of the test reveals that the charged offenses are not identical
in law and fact, a presumption arises that the legislature did not intend to preclude
cumulative punishments. State v. Eaglefeathers, 2009 WI App 2, ¶7, 316 Wis. 2d
152, 762 N.W.2d 690.

¶18 In this case, the State concedes that the bail-jumping charges are
identical in law because they were charged under the same statute, WIS. STAT.
§ 946.49. The parties disagree, however, on whether the charges are different in
fact.

¶19 Massie claims that the bail-jumping charges in counts eleven and
twelve are identical in fact with the bail-jumping charges in counts sixteen and
seventeen because they arise from the same underlying conduct. Counts eleven
and twelve allege that Massie twice violated a condition of his bond in Racine
County Circuit Court case No. 2018CF44 by committing new crimes. The
underlying bases for counts eleven and twelve were Massie’s crimes of possession
of heroin with intent to deliver and possession of cocaine with intent to deliver.
Counts sixteen and seventeen allege that Massie twice violated a condition of his
bond in case No. 2018CF44 by possessing two different controlled substances,
heroin and cocaine. Accordingly, Massie contends that counts eleven and sixteen
are the same in fact because they are both based on his act of possessing heroin.

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No. 2021AP378-CR

Similarly, he argues that counts twelve and seventeen are the same in fact because
they are based on his act of possessing cocaine. We disagree.

¶20 The focus in this case is not whether the bail-jumping charges are
based on the same volitional acts. In fact, no one appears to dispute that they are.
Rather, the dispositive question is whether each of the bail-jumping charges are
significantly different in nature because each requires proof of a fact that the
others do not. See Eaglefeathers, 316 Wis. 2d 152, ¶¶11-13; Richter, 189 Wis. 2d
at 109. We conclude that they are significantly different.

¶21 For count eleven, the State was required to prove that Massie:
(1) knew that one of his bond conditions prohibited him from committing any new
crimes; and (2) had the mental purpose to violate the condition prohibiting him
from committing new crimes by committing the crime of possession of heroin
with the intent to deliver. See WIS JI—CRIMINAL 1795 (2018). In contrast, for
count sixteen, the State was required to prove that Massie: (1) knew that one of
his bond conditions prohibited him from possessing controlled substances; and
(2) had the mental purpose to violate the condition by possessing heroin. See id.
These counts are different in nature because each count required proof of a
different bond condition. Count eleven required proof of the “no new crimes”
bond condition, while count sixteen required proof of the “no controlled
substances” bond condition. Additionally, each count required the State to prove
that Massie had the specific intent to violate that specific provision.

¶22 Similarly, for count twelve, the State was required to prove that
Massie: (1) knew that one of his bond conditions prohibited him from committing
any new crimes; and (2) had the mental purpose to violate the condition
prohibiting him from committing new crimes by committing the crime of

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No. 2021AP378-CR

possession of cocaine with the intent to deliver. See id. In contrast, for count
seventeen, the State was required to prove that Massie: (1) knew that one of his
bond conditions prohibited him from possessing controlled substances; and
(2) had the mental purpose to violate the condition by possessing cocaine. See id.
These counts are different in nature for the same reasons. Count twelve required
proof of the “no new crimes” bond condition, while count seventeen required
proof of the “no controlled substances” bond condition. Moreover, each count
required the State to prove that Massie had the specific intent to violate that
specific provision. Accordingly, we conclude Massie’s bail-jumping charges are
different in fact. See Eaglefeathers, 316 Wis. 2d 152, ¶¶10-13 (bail-jumping
offenses arising from single volitional act different in nature where each count of
bail jumping would require separate proof by the State); Richter, 189 Wis. 2d at
109 (multiple counts of bail jumping based on one illegal phone call different in
fact where each count would give rise to individual fact inquiry).

¶23 Once we have determined that the charged offenses are not identical
in law and fact, it then becomes the defendant’s burden “to show that the
legislature intended to preclude cumulative punishments.” Eaglefeathers, 316
Wis. 2d 152, ¶15. Massie does not address this part of the multiplicity test on
appeal. Accordingly, we decline to consider it. See A.O. Smith Corp. v. Allstate
Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (“[I]n order for
a party to have an issue considered by this court, it must be raised and argued
within its brief.”).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

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No. 2021AP378-CR

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