State v. Mark Anthony Culpepper

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 2, 2021
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. 2019AP9-CR Cir. Ct. No. 2015CF3359

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARK ANTHONY CULPEPPER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for
Milwaukee County: JONATHAN D. WATTS, JEFFREY A. CONEN, and
JOSEPH R. WALL, Judges. Affirmed.

Before Brash, P.J., Dugan 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).
No. 2019AP9-CR

¶1 PER CURIAM. Mark Anthony Culpepper appeals a judgment
convicting him of one count of first-degree intentional homicide and one count of
attempted first-degree intentional homicide, both as a party to a crime and while
armed with a dangerous weapon. He also appeals orders denying his postconviction
motion and motion for reconsideration.1 Culpepper argues that (1) his trial counsel
ineffectively represented him by failing to call two alibi witnesses to testify on his
behalf during trial; (2) his trial counsel ineffectively represented him by failing to
call an expert witness to testify about the unreliability of eyewitness identifications;
(3) his trial counsel ineffectively represented him by failing to call an expert witness
to testify about cell phone signal technology; (4) the circuit court erred in allowing
the State’s expert testimony about cell phones under Daubert v. Merrell-Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993); and (5) he was entitled to a
postconviction motion hearing. Upon review, we affirm.

¶2 The testimony at trial included testimony from A.B. that on July 5,
2015, Culpepper shot Jon Jones, who died as a result of the shooting, and attempted
to kill A.B. as the two men sat in a car parked in front of A.B.’s home. A.B. fled
from the car during the shooting and later A.B. identified Culpepper as the shooter.
A jury found Culpepper guilty of first-degree intentional homicide and attempted
first-degree intentional homicide but acquitted him of unlawfully possessing a
firearm after being convicted of a felony. Culpepper’s trial counsel died six months
after Culpepper’s conviction. Culpepper filed a postconviction motion by newly
appointed counsel, which the circuit court denied without a hearing. Culpepper then
filed a motion to reconsider, which the circuit court again denied without a hearing.

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The Honorable Jonathan D. Watts presided over the trial. The Honorable Jeffrey A.
Conen decided the first postconviction motion. The Honorable Joseph R. Wall decided the motion
for reconsideration.

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No. 2019AP9-CR

¶3 Culpepper argues that he received ineffective assistance of trial
counsel. To prove a claim of ineffective assistance of counsel, a defendant must
show that his or her lawyer performed deficiently and that this deficient
performance prejudiced him or her. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Counsel’s performance is deficient only if it falls “below … objective
standard[s] of reasonableness.” State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d 640,
782 N.W.2d 695 (citation omitted). “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690. To show
prejudice, “the 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.’” Carter, 324 Wis. 2d 640, ¶37 (citation omitted). A reviewing court may
dispose of a claim of ineffective assistance of counsel on either ground. Strickland,
466 U.S. at 697.

¶4 Culpepper first argues that his trial counsel rendered constitutionally
ineffective assistance because he did not call two alibi witnesses to testify on
Culpepper’s behalf during trial. Counsel timely filed a notice of alibi indicating that
Culpepper was with Thomas Sherrod and Lenzy Washington at the time of the
shooting. However, counsel decided not to call the witnesses during trial. The
circuit court asked counsel about this decision:

THE COURT: Defense, we now move to your case.
You called Mr. [Thao]. The jury’s heard him. Do you have
other witnesses you’re going to call other than your client for
the moment?

[Counsel]: We do not.

THE COURT: I don’t know how to ask this question
politely, but I feel now after seeing perhaps ten or 20 cases
of this nature where many years later someone says—well,
witness X or witness Y should have been called and why

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No. 2019AP9-CR

didn’t the defendant or the defense attorney call those
witnesses. Are there any obvious witness[es] that you’re—
that you’ve considered and you’re not calling?

[Counsel]: There are witnesses that we considered,
Judge, and for reasons that my client is aware of, those
witnesses are deemed by us to be either unreliable in some
respect or have—I’ll just put it like this, Judge, we’re not
able to call witnesses that we considered calling for different
reasons.

THE COURT: All right. I do appreciate that
discussion because I want people to understand that what we
do here is reviewed later on.

¶5 This dialogue between the circuit court and Culpepper’s counsel
shows that counsel made a strategic decision not to call the two alibi witnesses after
discussing the matter with Culpepper. Counsel explained to the court that, for
reasons both he and Culpepper were aware of, the witnesses were deemed to be
unreliable or not suitable. “[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable[.]” Id. at
690. Culpepper has not explained why his trial counsel’s strategic decision was
flawed. Therefore, he has not overcome the presumption that his trial counsel’s
decision not to call the alibi witnesses was a reasonable exercise of professional
judgment. See id. We reject this argument.

¶6 Culpepper next argues that his trial counsel performed ineffectively
because he did not call an expert witness to testify about the unreliability of
eyewitness identifications. In support, Culpepper presented to the postconviction
court a report by Dr. Lawrence T. White, an expert on eye witness identifications,
who addressed various factors applicable to this case that are statistically associated
with elevated levels of mistaken identification, including the witness not previously
being acquainted with the person identified, the witnesses being frightened or in a

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No. 2019AP9-CR

stressful situation, the witness seeing the person for only a brief period of time, and
the witness having imbibed intoxicants.

¶7 There are “countless ways to provide effective assistance in any given
case.” See Harrington v. Richter, 562 U.S. 86, 106 (2011) (citation omitted).
Rather than call an expert witness about the factors that affect the reliability of
eyewitness identifications, counsel aggressively cross-examined A.B. regarding the
circumstances surrounding A.B.’s identification of Culpepper as the shooter,
bringing to the jury’s attention factors that weakened the reliability of the
identification. Counsel’s efforts were successful. During cross-examination, A.B.
acknowledged: (1) that he had been smoking marijuana and drinking beer before
the shooting; (2) that he and the victim were watching for police; (3) that the
shooting frightened him; (4) that he ducked down and then fled; (5) that he did not
look back as he ran from the car; and (6) that he considered himself to be in shock
after the shooting. Counsel’s decisions about trial strategy are strongly presumed
to be reasonable. See Strickland, 466 U.S. at 690. Culpepper has not shown that
trial counsel rendered deficient performance by choosing to use cross-examination
to attack the reliability of A.B.’s identification rather than calling an expert witness.

¶8 Culpepper next argues that he received ineffective assistance of
counsel because trial counsel did not call an expert witness to impeach the State’s
cell phone signal expert witness, FBI Special Agent Daniel Harris. Culpepper
submitted to the postconviction court the report of an expert in digital forensics,
who questioned the scientific soundness of Harris’s testimony.

¶9 Culpepper’s argument fails for the same reason as his prior argument
about an expert witness failed. Trial counsel used other means to impeach the
State’s cell phone expert. Counsel brought the weaknesses in the cell tower expert

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No. 2019AP9-CR

testimony to the jury’s attention through thorough cross-examination. Through
questioning, Agent Harris acknowledged that a cell phone call does not necessarily
go to the closest cell phone tower, but rather, to the tower with the strongest signal.
He acknowledged that cell records do not provide definitive information about
where a cell phone is located and that the cell records did not show how far a phone
was from a particular tower at a particular time. Agent Harris also testified that a
phone call often stays with the first tower that picks it up, even as the person on the
call moves to a different area. In short, cross-examination was sufficient to show
the weaknesses in Agent Harris’s testimony about Culpepper’s location based on
cell tower signaling. Based on the record before us, Culpepper has not shown that
his trial counsel’s performance was deficient.

¶10 Culpepper next argues that the circuit court erred in ruling that the cell
tower location evidence was admissible under Daubert, 509 U.S. at 579. We reject
this argument because cell phone signal technology evidence has repeatedly been
found admissible in Wisconsin courts. See State v. Cameron, 2016 WI App 54,
¶26, 370 Wis. 2d 661, 885 N.W.2d 611. Culpepper asserts that the technical
information Agent Harris provided to the jury was not properly peer reviewed as
required by Daubert because the information came from cell phone company
engineers and law enforcement personnel, such as the FBI, who specialize in cell
phone signal technology. While Agent Harris’s testimony was not based on
academic peer-reviewed articles, Daubert imposes no such standard. Both law
enforcement and cell phone companies have a stake in having accurate information
about how cell phone towers function. Agent Harris’s testimony was based on
information corroborated by entities that have a stake in having accurate information
about the technology. We reject Harris’s argument that the evidence should have
been excluded at the Daubert hearing.

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No. 2019AP9-CR

¶11 Finally, Culpepper argues that he was entitled to a postconviction
motion hearing. “A motion claiming ineffective assistance of counsel does not
automatically trigger a right to a [postconviction] testimonial hearing[.]” State v.
Phillips, 2009 WI App 179, ¶17, 322 Wis. 2d 576, 778 N.W.2d 157. Where, as
here, a defendant fails to allege sufficient facts in his motion to show that he would
be entitled to relief if those facts were established, the circuit court may deny a
defendant’s argument that he received ineffective assistance of appellate counsel
without a hearing. See id. Therefore, the circuit court properly denied the
postconviction motion and the motion for reconsideration.

By the Court.—Judgment and orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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