State v. Marquise L. Stewart

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.
August 9, 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. 2021AP510-CR Cir. Ct. No. 2018CF609

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARQUISE L. STEWART,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Outagamie County: VINCENT R. BISKUPIC, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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. Marquise Stewart appeals from a judgment of
conviction for attempted first-degree intentional homicide, armed burglary, and
No. 2021AP510-CR

criminal damage to property. Stewart also appeals a circuit court order denying
his motion for postconviction relief. Stewart argues that hearsay was erroneously
admitted at trial and its admission violated his right to confrontation, that he
received ineffective assistance of counsel, and that we should reverse his
conviction in the interest of justice. We reject his arguments and affirm.

BACKGROUND

¶2 According to the criminal complaint, in the late night hours between
June 17 and June 18, 2018, Stewart kicked in the front door of the home of the
victim, David,1 went to the bedroom where David was sleeping, and hit him in the
head with a tire iron. Stewart had previously threatened to kill David, and he had
also made threats against Audrey, who was staying in David’s home that night and
was pregnant with Stewart’s child. Shortly after the attack, David received a text
message, which he believed to be from Stewart, that read, “I tried to kill yo bictch
ass … next time … imma get u rite.”

¶3 At trial, David testified that Stewart had shouted, “Where that bitch
at?” during the attack. David further testified that he recognized his attacker as
Stewart, based on Stewart’s size, voice, and dreadlocks with orange tips. One of
the responding officers and an emergency room nurse both confirmed that David
had identified Stewart as his attacker shortly after the incident. The emergency
room nurse also testified that David had told her that Stewart had been threatening
him and “the girl [who] was sleeping on [David’s] couch.” Several days after the

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2019-20), we use
pseudonyms when referring to the victims. All references to the Wisconsin Statutes are to the
2019-20 version unless otherwise noted.

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attack, David told another officer that he was “one hundred percent certain” that
Stewart was his attacker.

¶4 The prosecution also presented evidence of threatening text
messages that David had received both before and after the attack. Some of these
messages referred to an abbreviated version of Audrey’s name and “my baby
momma,” suggesting that the texts came from Stewart and related to Audrey.
Among other threats, on or around June 12, 2018, David had received a text
message that he believed to be from Stewart telling David that he had five days to
live. The jury also heard a voicemail message that Stewart left for David the day
after the attack, in which Stewart again threatened David’s life for disrespecting
him and for calling the police.

¶5 Additional evidence at trial included numerous Facebook posts from
an account associated with Stewart, as well as messages sent from that account to
an account associated with Audrey. One message sent shortly before the attack
read, “If I Eva see [David] again I’mma hurt him and u and all y’all.” Similar
messages were sent between those accounts after the attack, saying, “I swear to
god on my life imma kill dude before i get booked,” and “I asked him nicely to
stay tf … away from … u.”

¶6 Several law enforcement officers testified about their investigation
into the attack on David. Two officers testified that immediately after the attack,
they received a dispatch report telling them to be on the lookout for a vehicle with
the license plate ACB1916 that had reportedly fled the scene of the attack.
Officers subsequently determined that this vehicle was registered to Stewart’s
sister at an address associated with Stewart. Officers observed the vehicle the day
after the attack in the driveway of another residence connected to Stewart.

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Officers subsequently stopped the vehicle while it was being driven by Stewart’s
brother and received consent to search it. In the trunk, officers found a tire iron
with dried blood on it and a Chicago Bulls hat. DNA tests matched the blood on
the tire iron to David, and the hat resembled one that Stewart was wearing in a
recent Facebook picture.

¶7 The jury found Stewart guilty of attempted first-degree intentional
homicide, armed burglary, and criminal damage to property. Stewart filed a
postconviction motion in which he argued that the circuit court erred by admitting
testimony relating to the dispatch report of a vehicle fleeing the scene of the
attack. Stewart also alleged that he received ineffective assistance of counsel at
trial. The court denied Stewart’s postconviction motion without a hearing.
Stewart now appeals.

DISCUSSION

¶8 Stewart makes three sets of arguments on appeal. First, he raises
several challenges to the circuit court’s decision to admit the testimony regarding
the dispatch report. Second, he argues that the court should have held a hearing on
his postconviction motion alleging ineffective assistance of counsel. Third, he
argues that he should be granted a new trial due to the cumulative effect of the
alleged errors made by the court and his trial attorney. We address each argument
below.

I. Testimony about the Dispatch Report

¶9 Stewart’s first set of challenges relates to testimony by two of the
officers who were on duty the night of the attack, Sergeant Matthew Ollwerther
and Officer Phillip Akins. Both officers testified that dispatch had alerted them to

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be on the lookout for a vehicle with a license plate ACB1916, as reported by two
callers. Stewart’s trial attorney initially objected to this line of inquiry, arguing
that Ollwerther’s testimony about the anonymous calls was hearsay. The circuit
court sustained this first objection.

¶10 After the prosecutor laid additional foundation for testimony about
the dispatch report, Stewart’s trial attorney made a second objection. This time,
the circuit court overruled the objection, explaining that the testimony about the
dispatch report was being offered not for the truth of the matter asserted but,
rather, to explain what prompted officers to be on the lookout for a particular
vehicle in connection with the attack. The court admonished the jury that the
testimony about the dispatch report “is not to be considered as to the truth because
it could be mistaken” and instead to “wait and see if the hearsay portion even gets
proven later on because that could be mistaken information, it could be accurate
information.”

¶11 “A decision to admit or exclude evidence is within the circuit court’s
discretion.” State v. Gutierrez, 2020 WI 52, ¶17, 391 Wis. 2d 799, 943 N.W.2d
870. We “uphold a circuit court’s exercise of discretion to admit or exclude
evidence where it examined the relevant facts, applied a proper legal standard, and
using a demonstrated rational process, reached a reasonable conclusion.” Id., ¶21.

¶12 Stewart makes three interrelated arguments as to why the circuit
court erred by admitting the officers’ testimony about the dispatch report. First, he
contends the testimony about the dispatch report was hearsay (the anonymous tip)
within hearsay (the report from dispatch) that was not admissible under any
exception. Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the

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truth of the matter asserted.” WIS. STAT. § 908.01(3). That said, out-of-court
statements can be “offered for the limited purpose of explaining the actions of
investigative officers.” State v. Hines, 173 Wis. 2d 850, 858-59, 496 N.W.2d 720
(Ct. App. 1993).

¶13 Here, the circuit court admitted the testimony about the dispatch
report not for the truth of the information regarding the vehicle but, rather, for the
limited purpose of explaining the course of law enforcement’s investigation into
the attack. Specifically, the dispatch report explained to the jury why officers
were on the lookout for a particular vehicle and explained why officers stopped
and searched that vehicle the following day. Through subsequent testimony, the
prosecution established that the vehicle was registered to Stewart’s sister at an
address associated with Stewart. When officers stopped the vehicle, it was driven
by Stewart’s brother, and the trunk contained a tire iron with dried blood on it as
well as a Chicago Bulls hat. The DNA in the blood on the tire iron matched a
sample from David, while the hat matched one that Stewart had been wearing in a
recent Facebook post.

¶14 Thus, by the conclusion of the trial, the prosecution had established
an evidentiary connection between the vehicle, the attack, and Stewart,
independent of the dispatch report. The dispatch report simply helped to explain
why the officers undertook the investigative steps that ultimately yielded this
evidentiary connection. Indeed, in overruling Stewart’s second hearsay objection,
the circuit court explained to the jury that it could not use the testimony about the
dispatch report to establish the truth of the matter—namely, that the vehicle
identified in the report was in fact observed fleeing the scene. The court’s
decision to admit the testimony with this limiting instruction is consistent with
Hines, in which we concluded that out-of-court statements can be admitted for the

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No. 2021AP510-CR

limited purpose of helping to explain the course of an investigation. See Hines,
173 Wis. 2d at 859. We therefore conclude that the court acted within its
permitted discretion in admitting the testimony about the dispatch report. See
Gutierrez, 391 Wis. 2d 799, ¶27 (explaining that appellate courts should “look for
reasons to sustain a trial court’s discretionary decision” about whether to admit or
exclude evidence) (citation omitted).

¶15 Stewart’s second argument relating to the dispatch report is that the
subject testimony should have been excluded under WIS. STAT. § 904.03, which
provides, “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Stewart contends that the
testimony about the dispatch report “was misleading, of unsubstantiated reliability
and confusing under the circumstances.” At the outset, we note that Stewart’s trial
attorney did not make this objection during trial. Therefore, this argument has
been forfeited. See Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d
320, 786 N.W.2d 810 (“Arguments raised for the first time on appeal are generally
deemed forfeited.”).

¶16 Even if Stewart had not forfeited this particular statutory argument,
his argument fails on the merits. See State v. Erickson, 227 Wis. 2d 758, 766, 596
N.W.2d 749 (1999) (“[T]he [forfeiture] rule is one of judicial administration and
… appellate courts have authority to ignore the [forfeiture].”). As the circuit court
explained, its decision to admit testimony about the dispatch report helped to
avoid confusion and delay by providing context for the officers’ subsequent
investigative actions. Moreover, introducing this dispatch report earlier in the case
gave Stewart’s trial attorney the opportunity to elicit testimony from Officer Akins

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about the fact that he did not observe the vehicle identified in the dispatch report,
even though he was traveling along the reported path of that vehicle and he
expected to encounter it. Stewart’s trial attorney was then able to use this
testimony to cast doubt on the veracity of the anonymous report. Accordingly,
Stewart has not established that the dispatch report unfairly prejudiced him or that
it otherwise should have been excluded under WIS. STAT. § 904.03.

¶17 Stewart’s third argument against the admission of the dispatch report
is that it violated his right to confront witnesses under the Confrontation Clause in
the Sixth Amendment to the United States Constitution, as well as
article I, section 7 of the Wisconsin Constitution. As with his newly raised
argument under WIS. STAT. § 904.03, Stewart’s trial attorney did not make this
constitutional objection in the circuit court, and Stewart has therefore forfeited it.
See State v. Marshall, 113 Wis. 2d 643, 653, 335 N.W.2d 612 (1983) (concluding
that the defendant’s trial attorney waived a confrontation clause challenge by
making only a hearsay objection).

¶18 Even if Stewart’s trial attorney had properly raised a specific
Confrontation Clause objection, we conclude that any potential error in admitting
the testimony about the dispatch report was harmless. See WIS. STAT. § 901.03(1)
(“[e]rror may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected”); see also Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986) (holding that Confrontation Clause errors
are subject to harmless error review); State v. Harvey, 2002 WI 93, ¶49, 254
Wis. 2d 442, 647 N.W.2d 189 (a constitutional error is harmless if it is “clear
beyond a reasonable doubt that a rational jury would have found the defendant
guilty absent the error”).

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No. 2021AP510-CR

¶19 Here, it is clear beyond a reasonable doubt that the jury would have
found Stewart guilty even without the testimony about the dispatch report. At the
outset, we note that the testimony about a report of a vehicle fleeing the scene was
not by itself significant evidence against Stewart, especially because the vehicle
was not registered to him, nor was there any testimony indicating that he had been
observed in the vehicle. To the contrary, the unverified report of a vehicle fleeing
the scene turned out to be a weak link in the prosecution’s case, especially given
Officer Akins’ testimony that he expected to encounter the vehicle described in the
report but he did not see it on the night of the attack. Indeed, Stewart’s trial
attorney used this fact during closing argument as one of many examples of how
law enforcement engaged in confirmation bias and ignored facts that did not fit its
case against Stewart.

¶20 In contrast to the officers’ testimony about the unverified dispatch
report, the incriminating evidence eventually found in the trunk of that vehicle
provided a clear connection between the vehicle, the attack, and Stewart himself.
This clear connection was accompanied by other strong evidence of Stewart’s
guilt, including David’s consistent identification of Stewart as his attacker,
Stewart’s threats to harm David both before and after the attack, and numerous
incriminating Facebook posts and messages.

¶21 In short, the evidence of Stewart’s guilt was compelling without the
dispatch report, which was at best equivocal and arguably helped the defense’s
theory that law enforcement engaged in confirmation bias and overlooked other
potential suspects. We therefore conclude that it is clear beyond a reasonable
doubt that the jury would have convicted Stewart even without the testimony
about the dispatch report. See Harvey, 254 Wis. 2d 442, ¶49. Thus, any error in
admitting that testimony was harmless.

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No. 2021AP510-CR

II. Ineffective Assistance of Counsel

¶22 We now turn to Stewart’s argument that his trial attorney was
constitutionally ineffective. In his postconviction motion, Stewart argued that his
trial attorney failed to object to references to the dispatch report during Officer
Akins’ testimony and the prosecutor’s closing argument. The circuit court denied
Stewart’s postconviction motion without a hearing.

¶23 A claim of ineffective assistance of counsel requires Stewart to show
that his trial attorney’s performance was deficient and that Stewart was prejudiced
as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
deficient performance, a defendant must allege facts to overcome the presumption
that his or her trial counsel performed reasonably. See State v. Balliette, 2011 WI
79, ¶¶25-27, 336 Wis. 2d 358, 805 N.W.2d 334. To establish prejudice, a
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.”
State v. Sholar, 2018 WI 53, ¶33, 381 Wis. 2d 560, 912 N.W.2d 89 (citation
omitted). Because a defendant has the burden of establishing both deficient
performance and prejudice, “reviewing courts need not consider one prong if [a]
defendant has failed to establish the other.” State v. Chu, 2002 WI App 98, ¶47,
253 Wis. 2d 666, 643 N.W.2d 878.

¶24 A circuit court must hold an evidentiary hearing if a postconviction
motion alleges sufficient facts that, if true, would demonstrate both deficient
performance and prejudice. See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568,
682 N.W.2d 433. We review de novo the question of whether Stewart’s
postconviction motion alleged sufficient facts to require a hearing. Id. “[I]f the
motion does not raise facts sufficient to entitle the movant to relief, or presents

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No. 2021AP510-CR

only conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief,” the circuit court then has discretion to deny a
hearing. State v. Romero-Georgana, 2014 WI 83, ¶30, 360 Wis. 2d 522, 849
N.W.2d 668. We review the circuit court’s decision to deny a hearing for an
erroneous exercise of discretion. Id.

¶25 Stewart first points to his trial attorney’s failure to object to
Officer Akins’ testimony about the dispatch report. This argument fails because
the circuit court had just overruled the same objection during Sergeant
Ollwerther’s testimony. The State notes that Stewart’s initial brief did not identify
any authority that requires an attorney to repeat an objection that has already been
overruled. Stewart states in his reply brief that he “has no further argument on the
issue of ineffective assistance of counsel besides that raised in” his opening brief.
Stewart has the burden of demonstrating that his trial attorney acted unreasonably.
See Balliette, 336 Wis. 2d 358, ¶27. We therefore conclude that Stewart’s trial
counsel was not deficient for failing to repeat an objection that would have been
overruled.2 See State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769

2
Although we see no developed argument in Stewart’s initial brief that his trial attorney
was deficient for failing to make a Confrontation Clause objection, Stewart did make this
argument in his postconviction motion. In his reply brief, Stewart asserts that “[t]he State took
the position that Stewart’s trial attorney sufficiently preserved the evidentiary issues raised by
Stewart in the post conviction motion.” Stewart appears to misunderstand the State’s position,
because the State expressly argued that Stewart’s trial attorney forfeited the Confrontation Clause
argument by failing to make a specific objection at trial.

This failure, however, did not prejudice Stewart. In denying Stewart’s postconviction
motion, the circuit court rejected the Confrontation Clause argument on the merits. Although we
agree with the State that Stewart forfeited his Confrontation Clause argument by failing to make
the specific objection at trial, we also determine that the Confrontation Clause violation, if any,
was harmless. Thus, Stewart cannot establish a reasonable probability that the result of the trial
would have been different if his trial attorney had made a Confrontation Clause objection. See
State v. Trawitzki, 2001 WI 77, ¶40, 244 Wis. 2d 523, 628 N.W.2d 801.

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N.W.2d 110 (concluding that an attorney was not ineffective for failing to file a
motion in limine that would have been denied).

¶26 Stewart also argues that his trial attorney was ineffective for failing
to object to the prosecutor’s reference to the dispatch report during closing
argument. Specifically, after reminding the jury of the threats that Stewart had
made against David, the prosecutor then discussed the incriminating evidence
found in the vehicle that was reportedly observed near the attack and that was
registered to Stewart’s sister. In connecting the vehicle to Stewart, the prosecutor
stated:

But how else do we know that this defendant, Marquise
Stewart, is responsible for those violent acts? Well, we
have a car. Officers testified that a car was reportedly seen
leaving the scene at—and that a license plate was a
Wisconsin license plate ACB1916, and it was a silver
Pontiac Bonneville.

When that car is looked into, it’s registered to Quinita
Dickens, the defendant’s sister. It comes back to an
address at 825 West—Westfield Street in Oshkosh,
Wisconsin, one of the addresses that the defendant lists as
his when Sergeant Rabas runs him in-house to try to
determine where he might be.

Stewart argues that this portion of the prosecutor’s argument misused the
testimony about the dispatch report in a manner that was inconsistent with the
circuit court’s limiting instruction that the dispatch report not be used for the truth
of the matter stated therein. Stewart further contends that an evidentiary hearing is
required to determine whether there was a tactical reason for his trial attorney’s
failure to object.

¶27 We disagree that the prosecutor misused the testimony about the
dispatch report. By the time of closing arguments, the jury had heard additional

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testimony connecting the vehicle to the attack and to Stewart, including testimony
about the vehicle being registered to Stewart’s sister at an address associated with
Stewart, along with evidence incriminating Stewart being found in its trunk.
Given these many evidentiary connections between the vehicle, the attack, and
Stewart, there was nothing objectionable in the prosecutor’s closing argument.

¶28 Moreover, even if there were a basis for objection, the trial record
suggests that Stewart’s trial attorney made a tactical choice not to object to the
prosecutor’s reference to the dispatch report, but rather to highlight this report as
the first of many purported weak links in the case against Stewart. Specifically,
Stewart’s trial attorney argued that law enforcement’s focus on Stewart was a
result of confirmation bias that caused them to ignore any facts that did not point
to their main suspect. Stewart’s trial attorney urged the jury to focus on the
“objective things” that the State was ignoring, starting with the fact that the
anonymous report of the vehicle at the scene was never verified. The remainder of
Stewart’s closing argument continued with this theme, with his trial attorney
pointing to several other weaknesses in the case against Stewart that the State had
supposedly ignored. His trial attorney’s decision not to object to the prosecutor’s
reference to the dispatch report, but instead to incorporate it into Stewart’s own
closing argument, strikes us as an effective tactic under the circumstances. In
short, even if there was a viable objection to the prosecutor’s reference to the
dispatch report, Stewart has failed to overcome the presumption that his trial
attorney performed reasonably. See Balliette, 336 Wis. 2d 358, ¶27 (“[T]he law
affords counsel the benefit of the doubt; there is a presumption that counsel is
effective unless shown otherwise by the defendant.”).

¶29 Because Stewart did not allege sufficient facts to demonstrate that
his trial attorney rendered deficient performance and that he was prejudiced, we

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see no error in the circuit court’s discretionary decision to deny Stewart’s
postconviction motion without an evidentiary hearing. See Romero-Georgana,
360 Wis. 2d 522, ¶71 (affirming the circuit court’s decision to deny a
postconviction motion without a hearing because the motion “failed to sufficiently
allege facts that, if true, would entitle [the defendant] to relief”).

III. Request for a New Trial

¶30 Stewart’s final argument is that the errors discussed in Sections I and
II above “were sufficiently prejudicial to Stewart to undermine confidence in the
outcome of the trial.” To support this argument, Stewart points to State v. Delao,
2002 WI 49, ¶60, 252 Wis. 2d 289, 643 N.W.2d 480. In Delao, our supreme court
explained that errors admitting evidence do not warrant a new trial unless they
prejudice the defendant. Id.

¶31 Stewart contends that the errors by the circuit court and his trial
attorney prejudiced him “[o]n the critical issue of placing a vehicle associated with
Stewart near the scene of the crime.” This argument overlooks the incriminating
evidence found in the trunk of the vehicle—namely, the tire iron containing
David’s blood and the Chicago Bulls hat. This evidence was sufficient to connect
the vehicle to the attack, even without the dispatch report. Thus, Stewart has not
shown that he was prejudiced by testimony about the dispatch report or the
reference to the vehicle fleeing the scene during closing argument.

¶32 Stewart also points to State v. Stuart, 2005 WI 47, ¶41, 279 Wis. 2d
659, 695 N.W.2d 259. In Stuart, our supreme court identified several factors that
guide the determination of whether a particular error is harmless:

[T]he frequency of the error, the importance of the
erroneously admitted evidence, the presence or absence of

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evidence corroborating or contradicting the erroneously
admitted evidence, whether the erroneously admitted
evidence duplicates untainted evidence, the nature of the
defense, the nature of the State’s case, and the overall
strength of the State’s case.

Id.

¶33 Although we have already rejected Stewart’s argument that the
circuit court erred by admitting the testimony about the dispatch report, the factors
identified in Stuart support the conclusion that any error was harmless. As we
explained above in Section I, the testimony was helpful to the jury in terms of
explaining the course of law enforcement’s investigation, but otherwise it was not
important to the State’s case against Stewart. In addition, by the end of the trial,
there was ample evidence to corroborate information in the dispatch report—most
significantly, the incriminating evidence found in the trunk of the vehicle.
Moreover, when coupled with David’s consistent identification of Stewart as his
attacker, along with the threats of harm that Stewart made against David both
before and after the attack, the State’s case against Stewart was compelling even
without the testimony about the dispatch report. Finally, the nature of the defense
also supports our harmless error analysis because Stewart’s trial attorney adroitly
incorporated the fact that officers were unable to verify parts of the dispatch report
as part of the defense’s argument that the State’s investigation was based on
confirmation bias and that the State ignored evidence that did not fit its theory of
the case.

¶34 We therefore conclude that Stewart has not demonstrated that the
errors at trial (if any) warranted a new trial.

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By the Court.—Judgment and order affirmed.

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

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