State v. Tramell E. Starks

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.
September 12, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1657 Cir. Ct. No. 2006CF450

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TRAMELL E. STARKS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
GLENN H. YAMAHIRO, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Dugan, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1657

¶1 PER CURIAM. Tramell E. Starks appeals an order denying his
postconviction motion for a new trial based on newly discovered evidence without
an evidentiary hearing. As discussed below, we conclude that the circuit court
properly denied Starks’s motion without an evidentiary hearing and we affirm.

BACKGROUND

¶2 This is Starks’s fourth appeal before this court. As this court has
previously summarized, in 2005, police were dispatched to Lee Weddle’s
residence after a neighbor called 911 to report that he heard a fight followed by
several gunshots. Police arrived to find Weddle laying face down in a pool of
blood, and he was pronounced dead shortly thereafter. Law enforcement received
an anonymous tip that Starks was the shooter and that Antwon Nellum, Wayne
Rogers, and other unidentified people were present during the shooting.

¶3 When police first questioned Nellum, he declined to provide any
information, stating that he was afraid for himself and his family’s safety. In a
later interview, Nellum told police he witnessed a fight between Starks and
Weddle but left because he thought Starks “was going to do something real crazy.”
As he was running out of the apartment, he heard four or five gunshots. Following
this interview, and three weeks after he was released from custody, Nellum was
found murdered in his car.

¶4 Rogers initially denied being present when Weddle was murdered.
In a subsequent interview, Rogers told police that he witnessed a physical
altercation between Starks and Weddle, after which Starks shot Weddle two times.
Rogers told police he heard Weddle say something to the effect of “man, you
killed me,” and heard three or four more shots as he was leaving the apartment.

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¶5 At Starks’s trial, the jury heard testimony from several witnesses,
including Rogers and Carvius Williams. Both Rogers and Williams testified that
they witnessed the fight between Starks and Weddle, that Weddle pulled some hair
out of Starks’s head, and that Starks shot Weddle. Another eyewitness, Devin
Ward, testified to the physical fight between Starks and Weddle. Ward testified
that he left and was walking to his car when he heard gunshots.

¶6 The jury also heard testimony from Trenton Gray, Starks’s cousin.
Gray testified that on the day of Weddle’s murder, Starks called him “in a state of
distress” and asked if “he can go to a place … up in North Dakota … to take
refuge for some things that he believe[d] he had done.” When Gray asked Starks
what was going on, he said, “I don’t know, Cuz, I think I just murdered
somebody.” Gray further testified that in a later conversation, Starks told him
about the fight and named the person who had provided the gun. Gray also
testified that Starks wanted to kill Williams who he believed “was telling on him
about the murder[.]”

¶7 In addition, the jury heard testimony that hair located at the scene
matched Starks’s DNA to a statistical degree of certainty of one out of eighteen
billion.

¶8 The jury convicted Starks of first-degree reckless homicide and
possessing a firearm as a felon, and we affirmed on direct appeal. State v. Starks,
No. 2008AP790-CR, unpublished slip op. (WI App Dec. 23, 2008) (Starks I).

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¶9 On January 19, 2010, Starks filed a WIS. STAT. § 974.06 (2021-22)1
postconviction motion, which the circuit court denied. We affirmed the circuit
court’s order denying relief. State v. Starks, No. 2010AP425, unpublished slip op.
(WI App June 14, 2011) (Starks II). The Wisconsin Supreme Court granted
review and affirmed the circuit court’s order on different grounds. State v. Starks,
2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146 (Starks III), abrogated by State
ex rel. Warren v. Meisner, 2020 WI 55, 392 Wis. 2d 1, 944 N.W.2d 588.

¶10 On November 20, 2014, Starks filed a second WIS. STAT. § 974.06
motion. Relevant to this appeal, Starks requested a new trial based on newly
discovered evidence. Specifically, Starks alleged that Gray perjured himself at
trial and the State engaged in prosecutorial misconduct by suborning perjury. In
support, Starks pointed to letters that Gray wrote to his son, which according to
Starks contained admissions from Gray that he lied at Starks’s trial. The circuit
court denied Starks’s motion without an evidentiary hearing, and we affirmed.
State v. Starks, No. 2014AP2915, unpublished slip op. (WI App Apr. 27, 2016)
(Starks IV).

¶11 On March 22, 2021, Starks filed the motion underlying this appeal.
In his motion, Starks again contended that Gray perjured himself at trial. Starks
argued that he had new evidence that Gray fabricated his testimony to obtain a
lesser sentence on a federal charge he was facing. In support, Starks filed a 2019
affidavit from Deante Chambers.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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¶12 In his affidavit, Chambers swore that he had a conversation with
Gray in 2006 when they both were in a federal holding cell. The affidavit states in
pertinent part that:

During the time that we were in the holding cell Gray was
telling me that the Feds were threatening to bring up some
more charges on him if he didn’t provide them with some
information on his cousin regarding a homicide. Gray
stated to me that, “He didn’t know anything about the
incident, but that he did overhear people talking about his
cousin’s case, and that he was going to use what he had
heard in the hopes of getting out.” I told Gray that if he
didn’t know anything, then why would he say anything,
especially in regards to his own blood. Gray said that, “[i]f
[Starks] was in his shoes, he would want him to do the
same thing to him, because [Starks] was burnt up
anyways.”

¶13 In a 2021 affidavit, Chambers further explained that he ran into
Starks at the Kettle Moraine Correctional Institution around 2016 to 2017. He
stated that in 2006, the time of Starks’s trial, he was unwilling to go forward with
the information in his 2019 affidavit because he “was in serious legal trouble with
federal and state authorities and there was no way that I could cooperate with a
defendant who was being prosecuted, and be a witness against the State in a
criminal case.”

¶14 In addition to the affidavits from Chambers, Starks also filed
transcripts of two phone conversations between Gray and Starks that took place
when Starks was incarcerated.2 According to the transcripts, in the first phone
call, Gray offered to give Starks money for a lawyer. Gray stated that he felt
guilty because he was not doing more for Starks and that “I didn’t do anything to

2
Starks filed an affidavit from his daughter stating that Gray was the person on the call.

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you out of matters of spite. It was … all a game.” Gray stated that he tried to
explain to the police that what happened was an accident, and not intentional.
Gray also stated that “when I told [the police] what I thought I knew, because I
wasn’t there … then they was trying to come up with something else.” Gray went
on to say that the police played him.

¶15 In a second phone call the same day, Gray again stated that he would
pay for Starks’s attorney and was going to get him out of prison. Gray stated that
Starks “ain’t do shit” and had always been a good cousin. Gray explained that he
testified against Starks because he believed Starks would be convicted with or
without his testimony. Gray stated that if he knew he was going to be the one to
send Starks to jail “it would have been a different story.” Gray stated that when
Starks’s mother came and talked to him, he felt like committing suicide. Gray
then repeatedly apologized and stated that he was “going to do everything I can to
right this wrong.” Gray stated that he owed Starks and “whatever the lawyer need
me to do, I’m going to do it, even if it mean I got to go back and do some more
time, I’m going to do it.” Gray stated that he loved Starks and would call Starks’s
attorney on Monday.

¶16 In addition, Starks also submitted a 2021 affidavit from Starks’s
brother, Jerrell Starks. In his affidavit, Jerrell stated that he ran into Gray at a
Home Depot approximately twelve to eighteen months prior to the filing of his
affidavit. Gray told Jerrell that he knew what he did was wrong, “but that he
would have wanted [Starks] to do the same thing to him if the shoe was on the
other foot.” He also said that he did what he did because Starks was “already
burned on his case.”

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¶17 Finally, Starks contended that Gray was “a professional jailhouse
snitch” and listed details from three other cases where Gray testified against
someone at trial.

¶18 The State filed a motion in opposition. The State argued that the
Chambers information was not new and was known prior to trial, there was no
corroboration that it was Gray on the phone calls, the phone calls did not establish
that Gray was recanting his testimony, the evidence presented was cumulative, and
Starks did not establish a reasonable probability that the alleged new evidence
would create a reasonable doubt as to Starks’s guilt.

¶19 The circuit court denied Starks’s motion without an evidentiary
hearing. The court adopted and incorporated the State’s response as part of its
decision. The court also specifically found that Starks was aware of the allegation
that Gray told Chambers that he intended to fabricate his testimony. The court
further observed that there was no statement from Gray authenticating that he was
the person on the phone calls, and the calls did not contain a direct statement from
Gray that he lied in his testimony.

¶20 In addition, the circuit court found that even if the proffered
evidence satisfied the newly-discovered evidence requirements, “there is no
reasonable probability that a jury, looking at both the old and the new evidence,
would have a reasonable doubt about [Starks’s] guilt.” The court stated that
Gray’s testimony was significant, but not as important as the testimony from the
State’s eyewitnesses. The court acknowledged that while there were
inconsistencies in their testimony, both Rogers and Williams testified consistently
that Starks confronted Weddle, Starks eventually punched Weddle in the jaw, and

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that Starks shot Weddle several times. The court observed that the jury had an
opportunity to consider the inconsistencies in evaluating the witnesses’ credibility.

¶21 Starks appeals. Additional relevant facts are referenced below.

DISCUSSION

¶22 On appeal, Starks contends that Chambers’ affidavit constitutes
newly discovered evidence and requests that we reverse the circuit court’s
decision and remand for an evidentiary hearing.

¶23 When a postconviction motion is denied without an evidentiary
hearing, we review de novo “whether the motion on its face alleges sufficient
material and non-conclusory facts that, if true, would entitle the defendant to
relief” and “whether the record conclusively demonstrates that the defendant is not
entitled to relief.” State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d 458, 983 N.W.2d
608. “[I]f the motion does not raise facts sufficient to entitle the movant to relief,
or presents only conclusory allegations, or if the record conclusively demonstrates
that the defendant is not entitled to relief, the circuit court has the discretion to
grant or deny a hearing.” State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682
N.W.2d 433.

¶24 To prevail on a newly-discovered evidence claim, a defendant must
show by clear and convincing evidence that: “(1) the evidence was discovered
after conviction; (2) the defendant was not negligent in seeking evidence; (3) the
evidence is material to an issue in the case; and (4) the evidence is not merely
cumulative.” State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62
(citation omitted). If a defendant satisfies his burden on all four of these elements,
the circuit court must then determine “whether a reasonable probability exists that

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a different result would be reached in a trial.” State v. Avery, 2013 WI 13, ¶25,
345 Wis. 2d 407, 826 N.W.2d 60 (citation omitted). “A reasonable probability of
a different result exists if there is a reasonable probability that a jury, looking at
both the old and the new evidence, would have a reasonable doubt as to the
defendant’s guilt.” Id.

¶25 Here, the record conclusively demonstrates that Starks is not entitled
to relief. See Allen, 274 Wis. 2d 568, ¶9. First, the information from Chambers
does not satisfy the requirements for newly discovered evidence. The evidence
was not discovered after Starks’s conviction. See Love, 284 Wis. 2d 111, ¶43.
Starks knew prior to trial that Chambers heard Gray say that he planned to lie
about Starks’s confession.

¶26 At trial, Starks’s attorney specifically cross-examined Gray
regarding Chambers. Gray testified that he was in lockup in the federal building
with Chambers and he remembered having a discussion with Chambers. Starks’s
attorney then asked if Gray was going to use Starks’s case to get his “ass out of
jail and go home,” which Gray denied. In addition, before trial, Gregory Jackson
sent Starks a letter alleging that he overhead a conversation between Gray and
Chambers in which Gray suggested he planned to fabricate his testimony against
Starks. Thus, the record reflects that the evidence was known at the time of the
trial, and therefore is not new. See id.

¶27 Starks argues that because Jackson did not testify at trial and
invoked his right to not incriminate himself, this demonstrates that the evidence is
indeed new evidence. The evidence at issue, however, is not the letter or
testimony from Jackson, but the underlying allegation that Chambers heard Gray
state he planned to fabricate his testimony. Based on Jackson’s letter, Starks could

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have elicited testimony from Chambers at his trial, but did not do so. Starks does
not provide an explanation for why he did not pursue Chambers’s testimony at the
time of trial or allege that his trial counsel was ineffective for failing to call
Chambers.

¶28 Second, there is not a reasonable probability that a jury, looking at
both the old and the new evidence, would have a reasonable doubt as to Starks’s
guilt. See Avery, 345 Wis. 2d 407, ¶25. We agree with the State that the evidence
was too great to be undermined by Chambers’s testimony that Gray had planned to
fabricate his testimony.

¶29 At trial, both Williams and Rogers testified that they saw Starks
shoot Weddle following a physical fight. The allegation that Starks and Weddle
fought was corroborated by Ward, who testified that he saw the fight and then left.
In addition to the eyewitness testimony, the State presented DNA evidence that
hair located at the scene matched Starks’s DNA to a statistical certainty of one out
of eighteen billion.

¶30 Starks suggests that Chambers’s statements are “terribly
consequential” because Gray’s testimony was “highly incriminating.” The jury,
however, heard weaknesses with Gray’s credibility during the trial. Gray testified
that he was in federal custody facing a prison sentence of thirty years to life on a
drug and gun case and he hoped to serve less time by agreeing to cooperate in
Starks’s case. Additionally, as stated above, on cross-examination, the jury heard
Starks’s attorney ask Gray about his conversation with Chambers that he was

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going to use Starks’s case to get his “ass out of jail and go home[.]”3 Nonetheless,
the jury still determined that Starks shot and killed Weddle.

¶31 In addition, Starks contends that Williams’s and Rogers’s testimony
was insufficient for the jury to find Starks guilty due to inconsistencies in their
testimony, their credibility, and their “overt motives to fabricate.” Once again,
however, the jury heard the weaknesses with their testimony and still determined
that Starks shot and killed Weddle.4 See State v. Poellinger, 153 Wis. 2d 493,
504, 451 N.W.2d 752 (1990) (stating that “[t]he credibility of the witnesses and
the weight of the evidence is for the trier of fact” (citation omitted)).

¶32 Therefore, we are not persuaded that there is a reasonable probability
that a jury, looking at both the old and the new evidence, would have a reasonable
doubt as to Starks’s guilt. See Avery, 345 Wis. 2d 407, ¶25. Accordingly, for the
reasons discussed above, the record conclusively shows that Starks is not entitled

3
Later in his brief, Starks suggests that if granted a new trial, the State would not call
Gray at a new trial because his testimony would be “eviscerated on multiple fronts.” Whether or
not the State would call Gray, however, is speculation.
4
We note that Starks filed an affidavit from Williams in the circuit court. In Williams’s
affidavit, he stated that “I can’t say with absolute certainty th[a]t [Starks] was the shooter.”
However, as the circuit court observed, Williams’s affidavit does not recant his testimony.
Williams does not allege that Starks was not the shooter, but only that he could not say with
“absolute certainty” that Starks was the shooter.

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to relief based on newly discovered evidence, and the circuit court properly denied
Starks’s motion without an evidentiary hearing.5 See Allen, 274 Wis. 2d 568, ¶9.

By the Court.—Order affirmed.

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

5
The State makes a number of other arguments regarding why this court should reject
Starks’s newly-discovered evidence claim, including that the evidence was cumulative, there was
no indicia of reliability in Chambers’s statements, and that Chambers’s affidavit could not have
been used to impeach Gray. However, because we conclude that the Chambers information was
not new evidence because it was known prior Starks’s conviction, and that there is not a
reasonable probability that the new evidence would have changed the result at trial, we do not
address the State’s additional arguments. See State v. Blalock, 150 Wis. 2d 688, 703, 442
N.W.2d 514 (Ct. App. 1989) (stating that appellate courts should decide cases on the narrowest
possible grounds).

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