State v. Jamie L. Nicolai

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 9, 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.
2018AP2155-CR Cir. Ct. Nos. 2015CF5443
2017CF1064
2018AP2156-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMIE L. NICOLAI,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Milwaukee
County: PEDRO COLON, Judge. Affirmed.

Before Brash, P.J., Donald and White, 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. 2018AP2155-CR
2018AP2156-CR

¶1 PER CURIAM. Jamie L. Nicolai, pro se, appeals from judgments
of conviction, following a jury trial, of one count of second-degree recklessly
endangering safety, one count of substantial battery intending bodily harm with
the use of a dangerous weapon, one count of disorderly conduct, and one count of
felony bail jumping. We affirm.

BACKGROUND

¶2 On December 12, 2015, Nicolai was charged with one count of
second-degree recklessly endangering safety and one count of substantial battery
intending bodily harm with the use of a dangerous weapon. According to the
criminal complaint, on December 9, 2015, B.P. called 911 to report that Nicolai
was chasing her with a vehicle and trying to run her over. During the course of the
call, B.P. stated that Nicolai exited the vehicle and was stabbing her. B.P. reported
that Nicolai then fled. Police were dispatched to the scene where they found an
injured B.P., who was then transported to a local hospital. The complaint further
states that B.P. was pregnant and that the father of her child, Mario Walls, was
also the father of Nicolai’s child.

¶3 A second criminal complaint was issued on March 2, 2017, charging
Nicolai with one count of disorderly conduct and one count of felony bail
jumping. According to the complaint, following a court proceeding in the initial
case, Nicolai yelled threats at the victim and yelled profanities at the deputies that
tried to calm her.

¶4 The matters proceeded to trial where multiple witnesses testified.
B.P. testified that on the night of December 9, 2015, she was out with her best
friend and en route to her friend’s house when she came into contact with Walls.
B.P. stated that she had recently found out she was pregnant with Walls’s child

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and the two had been arguing all day. Walls asked B.P. to get into his car and he
drove them to his mother’s house, where Walls parked in a back alley. The two
continued to argue. When B.P. exited the vehicle, she saw a minivan traveling at a
high rate of speed down the alley in her direction. B.P. testified that she thought
the driver of the minivan was trying to hit her. B.P. testified that she jumped out
of the way, but the minivan clipped the back of her foot. B.P. testified that she
then ran between two houses when she saw the minivan jump a curb and drive
towards her again. B.P. stated that she jumped over a fence, at which point the
driver of the minivan stopped the car and exited the vehicle. B.P. identified the
driver as Nicolai. B.P. testified that she knew Nicolai through Walls. B.P.
testified that Nicolai began chasing her, ultimately caught up with her, and then
began stabbing her multiple times with an unidentified object. B.P. testified that
Nicolai told B.P. that she “wanted [the] baby to die.” B.P. testified that Walls
pulled Nicolai off of her and the two drove away. B.P. further testified that she
managed to dial 911 at some point during the vehicle chase and stayed on the
phone during the attack. A recording of the 911 call was played for the jury.

¶5 B.P. further testified that while in the hospital, she received several
phone calls from a blocked phone number. B.P. answered the phone and heard
Nicolai’s voice saying she thought B.P. and B.P.’s unborn baby were dead. B.P.
ended the call and spoke with Milwaukee Police about the calls.

¶6 Milwaukee Police Officer Brian Duerst testified that he was
dispatched to the scene of the incident following B.P.’s 911 call. Duerst testified
that he found B.P. with multiple “significant” lacerations and noticed blood on her
clothing. Duerst then called for an ambulance. B.P. told Duerst that she had been
stabbed by “Jamie.” B.P. also described the minivan involved in the incident and

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gave Nicolai’s address to Duerst. Duerst testified that he went to the address B.P.
provided, where he saw the minivan but did not find Nicolai.

¶7 Milwaukee Police Detective Jeffrey Emmanuelson testified that he
met B.P. at the hospital, where she showed him the lacerations to her cheek, arms,
legs, and stomach. B.P. told Emmanuelson that “Jamie ‘Nicholson’” attacked her
and Nicolai provided Emmanuelson with the same address she provided Duerst.
After looking up the address provided by B.P., Emmanuelson was able to
determine that the suspect was Nicolai. Emmanuelson collected B.P.’s clothes to
enter into evidence. The jury was shown B.P.’s clothing while Emmanuelson
described various cuts and blood stains on the clothes.

¶8 Emmanuelson testified that he went to the scene of the incident,
where he observed tire marks going up on the grass and stopping at a fence.
Emmanuelson also testified that B.P. informed him about phone calls she was
receiving from Nicolai while in the hospital. Emmanuelson testified that he later
spoke with Nicolai and she allowed police to download the contents of her cell
phone. Emmanuelson reviewed the call logs from Nicolai’s phone and saw five
outgoing calls made to B.P.’s phone number. All five calls occurred at various
times on December 10, 2015, while B.P. was in the hospital.

¶9 Natalie Ngyuen, a victim/witness advocate for the district attorney’s
office, testified about the events leading up to the disorderly conduct and bail
jumping charges. Ngyuen testified that on March 1, 2017, she was in the
courtroom for Nicolai’s scheduled jury trial. Ngyuen testified that Nicolai
stormed out of the courtroom, followed by her defense attorney, and then Nicolai
started yelling at her attorney. Ngyuen stated that she deliberately kept B.P. away
from Nicolai at that point, because she could hear “a couple of other things that I

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thought it best for [B.P.] to stay in the separate room.” Ngyuen testified that she
witnessed law enforcement try to calm Nicolai down.

¶10 Milwaukee Police Detective Edmund Fitting testified that on
March 1, 2017, he was at the Milwaukee County Courthouse when he heard a
woman “yelling and screaming” in a courthouse hallway. Fitting saw people in
the hallway back away from the woman—whom Fitting identified as Nicolai—and
then heard Nicolai call another detective a bitch. Fitting helped escort Nicolai to a
bench, at which point Nicolai stated “I’m going over to that bitch’s house to beat
her ass.”1 Fitting stated that Nicolai continued to shout and said “I can, basically,
say anything I want to say. You know, I don’t fucking care. And this is attorney
client[] privilege.” Fitting stated that Nicolai again referred to another detective as
a bitch and continued to shout for approximately ten to fifteen minutes.

¶11 Deputy Sheriff Michael Koch testified that on March 1, 2017, he
was working in his capacity as a courtroom bailiff when he witnessed Nicolai
cause a “loud disturbance.” Koch testified that he escorted Nicolai and her
counsel to the elevators so that they could leave and end the disturbance.

¶12 The jury ultimately found Nicolai guilty as charged. The trial court
imposed a total aggregate sentence for all four convictions of three years’ initial
confinement and three years’ extended supervision with various conditions.

¶13 After sentencing, Nicolai’s postconviction counsel brought a no-
merit appeal, pursuant to WIS. STAT. RULE 809.32 (2017-18)2 and Anders v.
1
It is unclear who Nicolai was threatening.
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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California, 386 U.S. 738 (1967). Nicolai thereafter expressed an intent to
discharge postconviction counsel and proceed pro se. We converted this case
from a no-merit appeal to a regular appeal and permitted Nicolai to proceed with
her direct appeal pro se.

DISCUSSION

¶14 Nicolai’s pro se appeal alleges several unsubstantiated allegations of
police, prosecutorial, and judicial misconduct, along with several undeveloped
arguments which vaguely appear in Nicolai’s statement of facts. We decline to
address these arguments and instead address what appears to be the crux of
Nicolai’s appeal, which is that there was insufficient evidence presented at trial to
sustain the jury’s verdict.

¶15 We view the evidence in the light most favorable to the verdict, and
if more than one reasonable inference can be drawn from the evidence, we must
accept the one drawn by the jury. See State v. Poellinger, 153 Wis. 2d 493, 504,
451 N.W.2d 752 (1990). “[T]he jury verdict will be overturned only if, viewing
the evidence most favorably to the [S]tate and the conviction, it is inherently or
patently incredible, or so lacking in probative value that no jury could have found
guilt beyond a reasonable doubt.” State v. Alles, 106 Wis. 2d 368, 376-77, 316
N.W.2d 378 (1982) (citation omitted). The jury is the sole arbiter of credibility of
witnesses, and it alone is charged with the duty of weighing the evidence. See
Poellinger, 153 Wis. 2d at 506.

¶16 Nicolai was charged with four crimes: (1) second-degree recklessly
endangering safety; (2) substantial battery intending bodily harm with the use of a
dangerous weapon; (3) disorderly conduct; and (4) bail jumping.

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¶17 To convict Nicolai of second-degree recklessly endangering safety,
the State was required to prove that Nicolai: (1) “endangered the safety of another
human being”; and (2) “endangered the safety of another by criminally reckless
conduct.” See WIS JI—CRIMINAL 1347. This requires a showing that Nicolai’s
conduct created an unreasonable and substantial risk of death or great bodily harm
to another and that Nicolai was aware that her conduct created such a risk. See id.
(defining criminally reckless conduct and great bodily harm).

¶18 B.P. testified that Nicolai attempted to run her over with a minivan
and then stabbed her multiple times while wishing B.P.’s unborn child dead.
Milwaukee Police found B.P. bleeding, with lacerations all over her body,
including her stomach. Milwaukee Police found tire tracks at the scene of the
incident, and later found the minivan at Nicolai’s address. Police also collected
B.P.’s blood-stained clothes after B.P. was admitted to the hospital. B.P. told
police that Nicolai was calling her at the hospital and told B.P. that she thought
B.P. and her unborn baby were dead. Viewing this evidence in a light most
favorable to the State and conviction, we conclude that a jury, acting reasonably,
could have found Nicolai guilty of second-degree recklessly endangering safety.

¶19 To prove substantial battery intending bodily harm, the State had to
show that Nicolai: (1) “caused substantial bodily harm” to B.P.; and (2) “intended
to cause bodily harm” to B.P. See WIS JI—CRIMINAL 1222. “Substantial bodily
harm” is bodily injury that causes, among other things, a laceration requiring
stitches. See WIS. STAT. § 939.22(38). “‘Bodily harm’ means physical pain or
injury, illness, or any impairment of physical condition.” See § 939.22(4). The
State was also required to prove that Nicolai used, threatened to use, or possessed
a dangerous weapon during the commission of the battery. See WIS. STAT.
§ 939.63; WIS JI—CRIMINAL 990.

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¶20 The record supports the jury’s verdict. As stated, B.P. testified that
Nicolai attempted to run her over with a minivan, chased her, and then attacked
her with a sharp object. B.P. testified that she felt sharp blows all over her body.
B.P. sustained multiple stab wounds. Pictures of the wounds were shown to the
jury, along with B.P.’s clothes, which contained slit marks and dried blood. B.P.
also received stitches for her wounds. Viewing this evidence in a light most
favorable to the State and conviction, we conclude that a jury, acting reasonably,
could have found Nicolai guilty of substantial battery intending bodily harm with
the use of a dangerous weapon.

¶21 As to the disorderly conduct charge relating to the March 1, 2017
courthouse incident, the State was required to prove that: (1) Nicolai engaged “in
violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise
disorderly conduct”; and (2) “[t]he conduct of the defendant, under the
circumstances as they then existed, tended to cause or provoke a disturbance.” See
WIS. STAT. § 947.01; WIS JI—CRIMINAL 1900.

¶22 Multiple witnesses testified that Nicolai stormed out of the
courtroom and began shouting in a hallway of the courthouse. Fitting testified that
Nicolai threatened an unknown woman, referred to a Milwaukee Police Detective
as a “bitch” several times, was told to quiet down, and shouted that she was
entitled to say what she wanted under the doctrine of attorney-client privilege.
Fitting further testified that Nicolai caused a scene, shouted for ten to fifteen
minutes, and caused others in the courthouse hallway to back away from her.
Koch testified that he heard the disturbance and escorted Nicolai to the elevator so
that she could leave. Viewing this evidence in a light most favorable to the State
and conviction, we conclude that a jury, acting reasonably, could have found
Nicolai guilty of disorderly conduct.

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¶23 Finally, as to the felony bail jumping charge, the State was required
to prove that Nicolai: (1) was charged with a felony; (2) was released from
custody on bond; and (3) “intentionally fail[ed] to comply with the terms of the
bond.” See WIS. STAT. § 946.49(1)(b); WIS JI—CRIMINAL 1795.

¶24 The record supports the jury’s finding that while released from
custody on a felony bond, Nicolai engaged in belligerent behavior outside of a
courtroom, surrounded by bystanders. Accordingly, viewing this evidence in a
light most favorable to the State and conviction, we conclude that a jury, acting
reasonably, could have found Nicolai guilty of felony bail jumping.

¶25 The State addresses multiple other arguments that it inferred from
Nicolai’s brief, including an allegation of ineffective assistance of counsel, alleged
discovery violations, and a self-defense claim. While we appreciate the State’s
thoroughness, we agree that Nicolai’s arguments are either unpreserved or
undeveloped. Nicolai makes multiple fleeting and accusatory statements
throughout the course of her brief. We will not abandon our neutrality to develop
legal arguments for pro se parties. See Industrial Risk Insurers v. American
Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82.

¶26 Furthermore, we conclude that Nicolai is not entitled to a new trial in
the interest of justice. This court may in its discretion set aside a verdict and order
a new trial in the interests of justice where “it appears from the record that the real
controversy has not been fully tried, or that it is probable that justice has for any
reason miscarried[.]” See WIS. STAT. § 752.35. We agree with the State that
“Nicolai has failed to demonstrate that the [trial] court erred in its evidentiary
rulings, there is no articulated argument that justice has been miscarried, and the

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controversy was fully tried here, leading to unanimous guilty verdicts for all
charges.”

¶27 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.

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