State v. James E. Emerson

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.
October 16, 2019
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. 2018AP922 Cir. Ct. No. 2007CF357

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES E. EMERSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County:
GREGORY J. STRASSER, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. 2018AP922

¶1 PER CURIAM. James Emerson appeals from an order denying his
postconviction motion, filed pursuant to WIS. STAT. § 974.06 (2017-18),1 seeking
relief from a conviction for first-degree intentional homicide. Emerson claims:
(1) his constitutional right to confront the witnesses against him was violated by
the admission of an out-of-court statement about Emerson made by a third party
that was referenced by a police detective during Emerson’s interrogation; and
(2) his trial counsel provided ineffective assistance by failing to investigate or
present meaningful mitigation evidence at sentencing. We conclude the circuit
court properly denied Emerson’s postconviction motion without a hearing because
the record conclusively demonstrates that he is not entitled to relief on either
claim. Therefore we affirm.

BACKGROUND

¶2 Rhonda Mertes was beaten to death in the early morning hours of
December 4, 1999. She had left a bar when it closed at 2:10 a.m. When her body
was found by joggers later that day, her clothes and underwear were ripped, her
pants were around her knees, and her face had been battered beyond recognition.
The state crime laboratory analyzed blood samples from the scene, but it was not
able to isolate any DNA profile other than the victim’s. Police interviewed a
number of people who had left the bar at about the same time as Mertes, including
Emerson, and followed up on numerous other tips and leads, but their initial
investigation could not conclusively link anyone to the crime.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP922

¶3 In 2005, following a number of advancements in DNA technology,
police resubmitted to the state crime laboratory evidence that had been collected
from the crime scene. This time, the state crime laboratory was able to isolate
Y-STR DNA evidence (a set of genetic markers passed identically from father to
son on the Y chromosome) on two items—the victim’s underwear and her
fingernail clippings. In addition, an FBI laboratory was able to identify
mitochondrial DNA (a set of genetic markers passed identically from mother to
child) from a pubic hair found on Mertes’ body. Based upon this new evidence,
the police began to reinterview people from their original investigation and to
request voluntary DNA samples.

¶4 During a reinterview with Emerson, the following exchange
occurred between a police detective and Emerson:

Q: Okay. What we’re asking James is that, um, everyone
we talk to, because we do now have some evidence ….

A: Mm-hm.

Q: … which will allow us to do two things, one, help us
convict the person responsible for the crime with DNA
evidence ….

A: Sure.

Q: … but just as important – and – and I don’t want you to
freak out because I’ll tell you this. This is not the only
situation like this that we’re dealing with where someone
said hey, this person told me that they did it. Okay? But
we’re asking that everyone we talk to provide us with a
sample of their DNA for comparison with our evidence
from that crime. And – and I tell everyone that if you
didn’t have anything to do with her and didn’t kill her, then
you don’t have anything to worry about whatsoever. So is
– would you be willing to provide us with a sample of your
DNA?

A: What – what – no, it doesn’t matter. Yeah.

….

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Q: So basically what I want to be able to do, James, is say
James Emerson came in, told us he doesn’t know what the
hell anyone’s talkin’ about, was cooperative, gave us a
sample of his DNA. We compare your DNA – or the crime
lab does – to the DNA from the crime scene. They don’t
match. Your name gets crossed off the list.

James then agreed to provide a buccal swab for DNA testing.

¶5 Members of the state crime laboratory tested buccal swabs from over
fifty people who may have had some connection or contact with Mertes, and the
lab eliminated all but Emerson as potential contributors to the DNA samples from
the nail clippings and underwear. There was no other potential match to those
samples from any profile in the state crime laboratory’s database. Emerson’s
Y-STR DNA profile contained matches for all twelve markers examined from
samples taken from the fingernail clippings and underwear. The FBI laboratory
also determined that Emerson’s mitochondrial DNA was consistent with that in
the pubic hair it tested.

¶6 At trial, in addition to the above DNA evidence, the State presented
evidence from two prisoners who said that while in jail Emerson had told them
that he had killed Mertes. Elmer Allen testified he had met Emerson while on
E Block in the county jail, and that Allen had attempted to give Emerson advice
about his defense and how to explain away DNA evidence. Emerson told Allen
that he had gone off with Mertes to smoke marijuana after leaving the bar, had hit
her in the head with a brick to force her to have sex with him, and then hit her
head with the brick again when she cried and continued to say she did not want to
do this. Allen also reported hearing Emerson muttering to himself “Why did I hit
that lady?” on multiple occasions while Emerson was pacing.

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No. 2018AP922

¶7 Timothy Sliwicki testified he had known Emerson for about ten
years, had socialized with him on occasion, and had introduced Emerson to Mertes
at the same bar she had been at on the night of her murder. On one occasion
approximately six months before the murder, Sliwicki observed Emerson and
Mertes talking together for about thirty minutes at the bar, and he then went out
and smoked marijuana with them in a van. On another occasion after that,
Sliwicki gave Emerson marijuana at the bar and watched him leave with Mertes to
go smoke it. Sliwicki subsequently spoke with Emerson in the county jail. After
initially denying that he ever knew Mertes (which Sliwicki knew to be untrue),
Emerson eventually told Sliwicki that he did not mean to kill her, that she was not
supposed to get hurt, and that he did not mean to hit her that hard.

¶8 The State also presented other acts evidence from three women who
described encounters they had with Emerson.2 Jane testified she encountered
Emerson at a fireworks display where he approached her, boxed her in, and told
her that he wanted to beat her up with a baseball bat, shoot her up with drugs, and
“fuck the shit” out of her. Rachel and Veronica testified that they were walking
toward their car to go home one evening when Emerson pulled alongside them in a
car and tried to talk them into going to a bar or hotel with him. When the women
refused and walked away, Emerson exited his vehicle and followed them. He put
his arms around Rachel and began kissing her and rubbing against her as she tried
to push him away and told him to stop. Emerson then squeezed Rachel’s breast,
grabbed her hand and put it on his penis until Veronica was able to pull Emerson

2
The other acts evidence involves potential victims of crimes. Pursuant to the policy
underlying WIS. STAT. RULE 809.86(4), we will use pseudonyms for the names of each of the
three women.

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No. 2018AP922

off Rachel. Emerson then began kissing and fondling Veronica until Rachel was
able to pull Emerson off Veronica. The women were able to get into their car, but
Emerson pushed his way into the car on top of Veronica and continued to grope
both of them until they played along and agreed to meet him at a hotel so that he
would return to his own car and they could drive away.

¶9 After the jury convicted Emerson, the circuit court sentenced him to
life in prison without parole. Regarding the severity of the crime, the court
explained it gave significant weight to the fact that Emerson had taken a mother
away from her children and to the “unimaginable horror” that Mertes would have
endured as Emerson attempted to rape her and beat her to death. The court
acknowledged that Emerson had a fairly stable work history and appeared to be a
devoted father, but it viewed the central aspect of Emerson’s character for
sentencing purposes to be that he was capable of beating another person to death
in such a brutal fashion.

¶10 Emerson filed a postconviction motion challenging the admission of
the transcript of his police interview and the other acts evidence described above,
the denial of a venue motion, the impartiality of the jury, his trial counsel’s
effectiveness in several respects, and highly emotional comments made by Mertes’
family at sentencing. The circuit court denied the motion, and this court upheld
the conviction on appeal. See State v. Emerson, No. 2011AP1028-CR,
unpublished slip op. (WI App June 26, 2012).

¶11 Emerson then filed a second WIS. STAT. § 974.06 postconviction
motion raising two new claims: (1) the detective’s reference during a portion of
Emerson’s videotaped statement played for the jury as being a situation “where
someone said hey, this person told me that they did it” constituted a confrontation

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No. 2018AP922

clause violation to which Emerson’s trial counsel should have objected or which
could be reviewed under the plain error doctrine; and (2) his trial counsel provided
ineffective assistance by failing to present mitigation evidence at sentencing in the
form of live testimony from Emerson’s family and friends. The circuit court
denied the second § 974.06 motion without a hearing, and Emerson appeals.

DISCUSSION

¶12 In order to obtain a hearing on a postconviction motion, a defendant
must allege material facts sufficient to warrant the relief sought. State v. Allen,
2004 WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d 433. In the context of a
claim of ineffective assistance of counsel, that means the facts alleged would, if
true, establish both that counsel provided deficient performance and that the
defendant was prejudiced by that performance. State v. Swinson, 2003 WI App
45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12. A defendant proves prejudice by
demonstrating there is a reasonable probability that, but for counsel’s
unprofessional conduct, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984). No hearing is required,
though, when the defendant presents only conclusory allegations or when the
record conclusively demonstrates that he or she is not entitled to relief. State v.
Romero-Georgana, 2014 WI 83, ¶30, 360 Wis. 2d 522, 849 N.W.2d 668. In the
latter case, this court will review a circuit court’s decision to deny a hearing under
the erroneous exercise of discretion standard. Id.

¶13 Here, the record conclusively demonstrates Emerson is not entitled
to relief on either of his claims because he cannot establish prejudice resulting

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No. 2018AP922

from his counsel’s alleged errors. We therefore conclude the circuit court properly
exercised its discretion in denying Emerson’s motion without a hearing.3

1. Confrontation Clause

¶14 Emerson’s videotaped statement to law enforcement was played for
the jury. This included a portion of the taped interview which indirectly
referenced a third party providing information to police about Emerson’s
confession. Emerson argues the reference to the third party statement was
testimonial hearsay offered for the truth of the fact asserted—that Emerson
confessed to killing Mertes. He argues the admission of this statement violated the
confrontation clause and that his counsel performed deficiently by failing to
object.

¶15 As to the confrontation clause issue, given the overwhelming
evidence of Emerson’s guilt, there is no reasonable probability that the exclusion
of a detective’s oblique reference during an interrogation regarding Emerson
having told an unidentified person that he killed Mertes would have resulted in a
different outcome at trial. To begin with, the jury was presented with evidence
that Emerson confessed to two different people. If the jury noticed the detective’s
isolated comment in the midst of an eight-day trial, it could have assumed the
detective was referring to one of those two people. Even if the jury recognized the
detective was referring to an additional admission to a third person, there were no

3
The State also argues that Emerson should be procedurally barred from raising his
current confrontation clause claim because he did not raise it on his prior appeal. We need not
address that argument in light of our conclusion that Emerson’s allegations are otherwise
insufficient to warrant a hearing.

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No. 2018AP922

further details provided that would have given that admission any significant
weight beyond that from the other admissions that were properly before the jury.

¶16 Furthermore, Emerson fails to acknowledge the highly probative
value of the DNA evidence against him. While there was insufficient biological
material recovered from the crime scene to isolate a complete DNA profile other
than the victim’s, the crime scene samples contained markers consistent with
Emerson’s Y-STR and his mitochondrial DNA. Although neither set of markers
was itself unique, it would be highly improbable for a random person to share an
exact set of both paternal and maternal DNA markers. In short, the DNA evidence
left no reasonable doubt as to Emerson’s guilt, particularly when considered in
conjunction with Emerson’s admissions of guilt and the other acts testimony about
his prior aggressive sexual conduct with women.

2. Sentencing Information

¶17 As to sentencing, Emerson provided an affidavit asserting that his
wife, Soccoro Emerson, would have testified that Emerson was honest,
hardworking, a loving father who spent time with his children, and that he was not
the kind of person who would be capable of committing murder. Soccoro had
never seen Emerson engage in altercations or other abusive behavior, and she
believed he respected authority, got along well with others, and always treated
women with respect.

¶18 Emerson’s mother Annie Emerson would have testified that
Emerson received good grades in school, sang in the choir, and that he was a very
spiritual person who loved his wife and family. Emerson’s sister Jackie Watkins
would have testified that Emerson was a quiet and respectful person who always
looked out for his sisters and took time out for others, that he was not a violent

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No. 2018AP922

person, and that he never got in trouble growing up. Emerson’s sister Debra
Webster would have testified that Emerson was a very loving husband and father,
who always treated women with respect, and was not the type of person capable of
committing murder. Emerson’s sister Terri Stovall would have testified that
Emerson loved his family and was very protective of his sisters.

¶19 Emerson’s former work supervisor Mark Wisnewski would have
described Emerson as responsible, honest, hardworking, dependable,
knowledgeable, trustworthy, kind, courteous, friendly, outgoing, and well-liked by
most of his co-workers. Emerson’s former work supervisor Karl Lang would have
described Emerson as very focused, responsible, trustworthy, well-spoken, and
honest. Lang would also have testified that Emerson generally got along with his
co-workers and was well liked and that he did not recall Emerson ever having any
disciplinary problems.

¶20 Emerson’s friend Cathy Kraus would have testified that Emerson
had a lot of friends and was well-liked, that he was a good father, and that he
always treated women with respect. Emerson’s friend Anthony Milanowski
would have testified that Emerson was a good father, that he was hard working,
responsible and honest, that he was well-liked and had a lot of friends, that he
would “give the shirt off his back to help someone out,” and that Milanowski
would trust Emerson with his family.

¶21 Emerson argues that the presentation of live testimony from these
family members, co-workers, and friends would have been relevant to the disputed
issue of his character and rehabilitative potential, and that there is a reasonable
probability that this live testimony would have convinced the circuit court to
provide him with the possibility of parole. We disagree.

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No. 2018AP922

¶22 At the sentencing hearing, Emerson’s trial counsel presented three
letters from character witnesses—Emerson’s wife, a jail ministry worker, and a
neighbor—in support of an argument that Emerson’s potential for rehabilitation
warranted a determination of eligibility for supervised release. The circuit court
acknowledged the information in those letters when it noted that Emerson had a
“responsible work history” and was a “devoted father.” The court simply viewed
the facet of Emerson’s character that had been revealed by his commission of this
brutal crime and his prior failures on supervision as more significant than his work
history or relationships with family and acquaintances. Moreover, the court was
entitled to weigh the seriousness of the offense more heavily than Emerson’s
rehabilitative potential, as it apparently did. In sum, we see no reasonable
probability that presenting live testimony from character witnesses on Emerson’s
behalf regarding his rehabilitative potential would have persuaded the circuit court
to grant Emerson eligibility for supervised release.

By the Court.—Order affirmed.

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

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