State v. Thomas Eric Nelson, Jr.

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.
April 28, 2020
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 Nos.
2019AP33-CR Cir. Ct. Nos. 2014CF4630
2014CF4631
2019AP34-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS ERIC NELSON, JR.,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Milwaukee
County: FREDERICK C. ROSA, Judge. Affirmed.

Before Brash, P.J., Blanchard and Donald, 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).
Nos. 2019AP33-CR
2019AP34-CR

¶1 PER CURIAM. Thomas Eric Nelson, Jr., appeals the judgments of
conviction, following a jury trial, of five crimes charged in two cases that were
joined for trial. We affirm.

BACKGROUND

The Charges

¶2 On October 16, 2014, Nelson was charged with one count of first-
degree recklessly endangering safety with the use of a dangerous weapon, as a
repeater, and one count of being a felon in possession of a firearm, as a repeater.
According to the criminal complaint, on May 22, 2014, Nelson shot into a vehicle
driven by B.P., hitting the vehicle and shattering the windows. B.P. recognized
Nelson as the shooter, telling police that he believed Nelson shot at him in
“retaliation” and claimed that Nelson “was trying to kill him.” B.P. told police
that the firearm Nelson used was “large,” and was either a .40 or a .45 caliber.
Nelson was charged in Milwaukee County Circuit Court case No. 2014CF4630.

¶3 Nelson was arrested on October 15, 2014, after police saw Nelson—
who was wanted for the May 2014 drive-by shooting—at a school playground at
1:40 a.m. When the officers exited their squad car and attempted to speak with
Nelson, Nelson began to flee on foot, grabbing his waistband and throwing a
concealed firearm to the ground. Nelson was subsequently apprehended and
police recovered a black Glock model 22 .40 caliber semi-automatic firearm
loaded with twenty-three cartridges. The same firearm had been reported stolen in
an armed robbery that took place on August 7, 2014 in Milwaukee. In Milwaukee
County Circuit Court case No. 2014CF4631, the State charged Nelson with one
count of being a felon in possession of a firearm, one count of obstructing/resisting
an officer, and one count of carrying a concealed weapon, all as a repeater.

2
Nos. 2019AP33-CR
2019AP34-CR

The State’s Motion to Introduce Other-Acts and for Joinder

¶4 The State filed a motion to introduce other-acts evidence and a
motion for joinder of case No. 2014CF4630 (the May drive-by shooting) and case
No. 2014CF4631 (the October case) for trial. The other-acts evidence involved a
shooting that occurred at B.P.’s residence on August 14, 2014. The State
submitted that on that date, B.P.’s father, J.P., reported hearing more than ten
gunshots fired in front of his home while B.P. was sitting on the front porch.
Police recovered twelve brass casings from the scene of the shooting. Police
determined that the casings were all fired from the same firearm—a .40 caliber
Glock semi-automatic. The firearm matched the firearm related to Nelson’s
October 2014 possession of a firearm offense.

¶5 The State argued that the other-acts evidence linked Nelson to both
the May 2014 drive-by shooting and the October 2014 incident and this was a
significant part of the State’s rationale for joinder. Specifically, the State argued
that the firearm recovered from the October 2014 incident matched the firearm
used to shoot at B.P.’s home in August 2014, and the May 2014 incident, which
also involved shooting at B.P. The State contended that the other-acts
evidence: linked Nelson to all three events; showed plan, identity, and knowledge;
was relevant because it tended to show that Nelson shot at B.P.’s car in May 2014
with the same firearm Nelson attempted to discard in October 2014; had a
probative value outweighing the potential for prejudice; and supported joinder
because it connected the May 2014 and October 2014 incidents.

3
Nos. 2019AP33-CR
2019AP34-CR

¶6 The trial court granted both of the State’s motions.1

June 2015 Adjournment

¶7 Following Nelson’s March 25, 2015 written demand for a speedy
trial, a jury trial was scheduled for June 8, 2015. On that day, trial counsel,
Edward Wright, informed the trial court that he was prepared to proceed with trial,
but that he did not have certain medical records and records from Time Warner
Cable that he thought would be helpful to the defense. Wright told the trial court
that Nelson was aware of the missing records but wished to proceed with trial.
Nelson personally told the court that he was tired of waiting for trial, that his
“body” was his “medical record,” and that he was comfortable proceeding to trial
without the records mentioned by Wright. The State noted that the time period to
hold a trial under the speedy trial demand was coming to an end. The trial court
then held an in-chambers discussion with the parties. After the discussion, the
trial court shared its “concern that this case really isn’t prepared to go to trial.” On
its own motion, the trial court adjourned the trial, finding that “for the matter to be
fully and fairly tried, the appropriate information has to be available.” The trial
court explained that pursuant to WIS. STAT. § 971.10(3)(a) (2017-18),2 it was
authorized to grant a continuance on its own motion “if the ends of justice served
by taking action outweigh the best interest of the public and the defendant in a
speedy trial.”

1
The Honorable Thomas J. McAdams presided over the motion hearing.
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

4
Nos. 2019AP33-CR
2019AP34-CR

September 2015 Motion to Dismiss and Further Adjournment

¶8 On September 21, 2015, the parties appeared before the trial court3
and stated that they were prepared to proceed with the trial. As relevant to this
appeal, Wright told the trial court that Nelson believed his speedy trial rights were
violated and asked the trial court to dismiss the case. The trial court denied the
motion, stating:

Apparently the [c]ourt conducted some sort of balancing
against this gentleman’s right to go forward with the trial
quickly as compared with his right to be able to have the
information that was necessary to allow him to present his
defense. The judge felt it important that those records be
available and looked at. It isn’t the [S]tate’s fault. It isn’t
Mr. Nelson’s fault that the information was not available.
But the [c]ourt weighed those considerations, and I assume
granted an adjournment on that basis.

I would not look at it at this point in time and
second guess the decision of the [c]ourt that had all of the
information in front of it and particularly a dismissal where
essentially the [S]tate would be prejudiced. I don’t think
that [would be] appropriate where the State was not the
cause of the adjournment and they requested that they go
forward, just as the defense wanted to.

Later that day, the court began the jury selection process.

¶9 The following morning, outside of the presence of the jury, Wright
informed the trial court that Nelson had filed a complaint with the Office of
Lawyer Regulation against him. Consequently, Wright moved to withdraw as
Nelson’s counsel. The trial court granted Wright’s motion, noting that Nelson had
been filing motions independent of Wright and that both Wright and Nelson had

3
The Honorable Frederick Rosa presided over the motion to dismiss and the remainder
of the trial.

5
Nos. 2019AP33-CR
2019AP34-CR

brought multiple grievances to the court’s attention. Over the State’s and Nelson’s
objections, the trial court adjourned the trial.

¶10 The trial was ultimately conducted from January 25, 2016, through
February 2, 2016. The jury found Nelson guilty as charged. In case
No. 2014CF4630 (the May drive-by shooting case), the trial court imposed ten
years of initial confinement and five years of extended supervision on the
recklessly endangering safety count, and five years of initial confinement and five
years of extended supervision on the felon in possession of a firearm count, to be
served consecutively. In case No. 2014CF4631 (the October case), the trial court
sentenced Nelson to five years of initial confinement and five years of extended
supervision on the felon in possession of a firearm count, consecutive to the
sentences in case No. 2014CF4630, and concurrent to the two one-year sentences
on the obstruction and carrying a concealed weapon misdemeanor counts.

¶11 This appeal follows.

DISCUSSION

¶12 On appeal, Nelson contends that: (1) his constitutional right to a
speedy trial was violated; and (2) the trial court erred in granting the State’s
motion for other-acts evidence and joinder. We discuss each issue.

Speedy Trial

¶13 Nelson contends that the trial court erred when it denied his motion
to dismiss for violation of his constitutional right to a speedy trial because from
the date he filed his speedy trial demand until the date of his trial, the trial court
adjourned the trial twice over his objections. Nelson argues that the trial court was

6
Nos. 2019AP33-CR
2019AP34-CR

aware of Nelson’s speedy trial concerns and asserts that the “prejudicial delay”
was “overly oppressive.”

¶14 “Both the Sixth Amendment to the United States Constitution and
article I, section 7 of the Wisconsin Constitution guarantee an accused the right to
a speedy trial.” State v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 704
N.W.2d 324. Whether this right has been violated is a question of law that we
review independently, although we accept any findings of fact made by the trial
court unless they are clearly erroneous. See id., ¶10.

¶15 When assessing whether a constitutional speedy trial violation has
occurred, we apply the four-factor test established in Barker v. Wingo, 407 U.S.
514 (1972). See Urdahl, 286 Wis. 2d 476, ¶11. We consider: (1) the length of
the delay; (2) the reasons for the delay; (3) whether the defendant asserted the
right to a speedy trial; and (4) whether the delay prejudiced the defendant. See id.
“The right to a speedy trial is not subject to bright-line determinations and must be
considered based on the totality of circumstances that exist in the specific case.”
Id. Here, considering the four Barker factors in light of the totality of the
circumstances, we conclude that Nelson’s right to a speedy trial was not violated.

¶16 The first Barker factor—the length of the delay—is a “triggering
mechanism used to determine whether the delay is presumptively prejudicial.”
Urdahl, 286 Wis. 2d 476, ¶12. Delays “approaching one year” are considered
presumptively prejudicial. Id. The delay from the time of the filing of the
complaints in these cases in October 2014 until the start of trial on January 25,
2016 was approximately one year and three months, and therefore, presumptively
prejudicial. Accordingly, we consider the remaining Barker factors. See State v.
Borhegyi, 222 Wis. 2d 506, 510, 588 N.W.2d 89 (Ct. App. 1998) (stating that

7
Nos. 2019AP33-CR
2019AP34-CR

evaluation of all of the Barker factors is only called for if the delay was
presumptively prejudicial).

¶17 The second Barker factor directs us to consider the reasons for the
delay. See Urdahl, 286 Wis. 2d 476, ¶11. “When considering the reasons for the
delay, courts first identify the reason for each particular portion of the delay and
accord different treatment to each category of reasons.” Id., ¶26. “A deliberate
attempt by the government to delay the trial in order to hamper the defense is
weighted heavily against the State, while delays caused by the government’s
negligence or overcrowded courts, though still counted, are weighted less
heavily.” Id. “On the other hand, if the delay is caused by something intrinsic to
the case, such as witness unavailability, that time period is not counted…. Finally,
if the delay is caused by the defendant, it is not counted.” Id.

¶18 Here, the record is clear that none of the delays were attributable to
the State. The first delay, which occurred in June 2015, was a result of the
unavailability of evidence. Although Nelson contends that the evidence was
unnecessary to his defense, the trial court balanced Nelson’s speedy trial rights
against the interest of justice and adjourned the matter to allow Nelson to have a
complete defense. Under the facts of this case, we conclude that a delay relating
to the unavailability of evidence and the trial court’s concern for a fair trial “is not
counted.” See id.

¶19 The second delay occurred in September 2015 after Nelson filed a
complaint with the Office of Lawyer Regulation against his trial counsel,
necessitating counsel’s withdrawal and the appointment of new counsel. That
delay—from September 2015 until January 2016, when Nelson’s trial actually
took place—stemmed from Nelson’s own action.

8
Nos. 2019AP33-CR
2019AP34-CR

¶20 The third Barker factor directs us to consider whether the defendant
asserted his or her right to a speedy trial. See Urdahl, 286 Wis. 2d 476, ¶11. In
this case, it is undisputed that Nelson filed a speedy trial demand and repeatedly
asserted his right to a speedy trial. We therefore assess the last Barker factor.

¶21 The final Barker factor directs us to consider whether Nelson was
prejudiced by the delay in bringing him to trial. See Urdahl, 286 Wis. 2d 476,
¶11. When assessing this factor, we consider “the three interests that the right to a
speedy trial protects: prevention of oppressive pretrial incarceration, prevention of
anxiety and concern by the accused, and prevention of impairment of defense.”
See id., ¶34. None of these interests support Nelson’s claim that he was denied the
right to a speedy trial.

¶22 Nelson asserts that his pretrial incarceration was “oppressive” for
purposes of satisfying the prejudice prong of the Barker test, but he offers no
support for his conclusory statement, nor does Nelson allege that the delays
themselves caused him anxiety or concern. Although anxiety and concern on the
part of the accused is common in most criminal prosecutions and can be inferred
on the part of many defendants when trials are delayed, Nelson cites no evidence
suggesting that he actually experienced any sort of anxiety as a result of trial
delays. Finally, the record does not support the contention that the delays
hindered Nelson’s ability to mount a defense. Indeed, the first delay was a result
of the trial court’s attempt to help Nelson build his defense by allowing time for
the defense to obtain certain evidence. Nelson caused the second delay himself by
filing a complaint against his trial counsel, creating a conflict of interest for
counsel to which the trial court responded appropriately.

9
Nos. 2019AP33-CR
2019AP34-CR

¶23 Under the facts of this case and in consideration of the Barker
factors, we conclude that the length of the delay does not constitute a delay which
was prejudicial and that Nelson was not denied his right to a speedy trial.

Other-Acts Evidence

¶24 Nelson contends that the trial court erred in admitting the other-acts
evidence of the August 2014 shooting because the identity of the shooter was
unknown, the evidence was hearsay, and the prejudicial effect of the evidence
outweighed its probative value. We disagree.

¶25 Admissibility of other-acts evidence is governed by a three-step
test: the evidence must be admitted for an acceptable purpose under WIS. STAT.
§ 904.04(2); it must be relevant; and its probative value must not be substantially
outweighed by the danger of unfair prejudice. State v. Sullivan, 216 Wis. 2d 768,
772-73, 576 N.W.2d 30 (1998). The trial court’s determination “to admit or
exclude evidence is a discretionary decision that will not be upset on appeal”
absent an erroneous exercise of discretion. State v. Jenkins, 168 Wis. 2d 175,
186, 483 N.W.2d 262 (Ct. App. 1992) (citation omitted). Accordingly, we will
sustain an evidentiary ruling if “the trial court examined the relevant facts, applied
a proper standard of law, and ... reached a conclusion that a reasonable judge could
reach.” See Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

¶26 Here, the trial court explained that the evidence was admitted for an
acceptable purpose—namely, to establish identity and a plan. Noting that under
the State’s theories B.P. was the target of both the May and August incidents, and
that the shell casings from the August incident matched the gun found in the
October incident, the court stated “it does seem to me that the May and August

10
Nos. 2019AP33-CR
2019AP34-CR

incidents establish an identity and something along the lines of a plan, and the
October incident, when coupled with the August incident, certainly go to identity.”

¶27 As to the relevance of the other-acts evidence, the court noted the
similarity and connection between the charged offenses and the other-acts
evidence, stating “[p]utting the gun in Mr. Nelson’s hand on October 15 seems to
put it in his hand on August 14. And that goes to identity on May 22, and motive
and absence of self-defense.”

¶28 Finally, in weighing the probative value of the evidence against the
risk of unfair prejudice, the trial court found that “the balance goes in favor of
admissibility. I think to some degree the evidence might clarify the evidence on
identification.” The trial court noted that any risk of prejudice could be minimized
by a jury instruction informing the jury “on how to use the evidence.” Because the
trial court examined the relevant facts, applied the proper standard of law, and
reached a reasonable conclusion, we are satisfied that the trial court properly
exercised its discretion in admitting this evidence.

Joinder

¶29 Finally, Nelson argues that the trial court erred in joining case
Nos. 2014CF4630 and 2014CF4631 for trial. Specifically, he contends that the
modus operandi between the May and October 2014 incidents were materially
different and that the court’s decision to join the cases was based solely on its
admission of the other-acts evidence. We disagree on each aspect of this
argument.

¶30 Joinder of charges, pursuant to WIS. STAT. § 971.12, is proper when
two or more crimes are of the same or similar character and occur over a relatively

11
Nos. 2019AP33-CR
2019AP34-CR

short amount of time, or when they arise from the same act or transaction. State v.
Locke, 177 Wis. 2d 590, 596, 502 N.W.2d 891 (Ct. App. 1993). Joinder is proper
if the crimes charged “have a common factor or factors of substantial factual
importance, [e].g., time, place, or [m]odus operandi, so that the evidence of each
crime is relevant to establish a common scheme or plan that tends to establish the
identity of the perpetrator.” Francis v. State, 86 Wis. 2d 554, 560, 273 N.W.2d
310 (1979). The joinder statute “is to be broadly construed in favor of initial
joinder.” State v. Salinas, 2016 WI 44, ¶31, 369 Wis. 2d 9, 879 N.W.2d 609. The
trial court’s initial decision to join charges for trial is a question of law that we
review de novo. Id., ¶30.

¶31 We agree with the State’s succinct analysis of the issue:

[T]he October charges arose when, while police were
pursuing Nelson as a suspect in the May drive-by shooting,
he threw a [.40] Glock firearm to the ground and fled.
Thus, the May and October cases were connected because
one arose out of investigation of another case, occurred
close in time, and were related to each other as part of
Nelson’s scheme or plan to avoid being caught for the May
shooting. The other-acts incident of the August shooting
provided additional linkage between the May and October
cases, including the same victim, overlapping witnesses,
and ballistics evidence confirming the gun used was a [.40]
Glock.

Accordingly, we conclude that the trial court properly joined the cases.

¶32 For the foregoing reasons, we affirm the trial court.

By the Court.—Judgments affirmed.

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

12