State v. Malcolm A. Butler

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.
July 14, 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. 2019AP637 Cir. Ct. No. 2009CF1087

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MALCOLM A. BUTLER,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Kenosha County:
DAVID P. WILK, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Davis, 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. 2019AP637

¶1 PER CURIAM. Malcolm Butler appeals pro se from circuit court
orders denying his WIS. STAT. § 974.06 (2019-20)1 motion. Because the record
conclusively demonstrates that Butler was not entitled to relief, we affirm the
circuit court’s orders denying the motion without an evidentiary hearing.

¶2 In 2011, a jury convicted Butler of being a felon in possession of a
firearm and being party to the crimes of attempted first-degree attempted
homicide, armed robbery, and substantial battery. In 2013, we affirmed Butler’s
conviction. State v. Butler, 2014 WI App 4, 352 Wis. 2d 484, 844 N.W.2d 392.2
In 2019, Butler filed a pro se WIS. STAT. § 974.06 motion alleging ineffective
assistance of postconviction counsel because counsel did not argue that trial
counsel was ineffective for failing to object to certain evidence at trial.3 The
circuit court denied the motion without an evidentiary hearing. Butler appeals.

¶3 A circuit court has discretion to deny a WIS. STAT. § 974.06 motion
without an evidentiary hearing if the motion does not allege “sufficient facts that,
if true, show that the defendant is entitled to relief,” “or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is not

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Butler’s direct appeal challenged the delay in commencing his trial. We affirmed the
conviction.
3
Butler alleged other claims, but he pursues only these ineffective assistance of counsel
claims on appeal.

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No. 2019AP637

entitled to relief.” State v. Balliette, 2011 WI 79, ¶18, 336 Wis. 2d 358, 805
N.W.2d 334 (citation omitted).4

¶4 To succeed on an ineffective assistance of counsel claim, a
defendant must demonstrate that counsel’s representation was deficient and that
the deficiency was prejudicial. State v. Jeannie M.P., 2005 WI App 183, ¶6, 286
Wis. 2d 721, 703 N.W.2d 694. Both deficient performance and prejudice present
mixed questions of fact and law. Id. We review de novo whether counsel’s
performance was deficient or prejudicial. Id. To show prejudice arising from
counsel’s performance, a 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. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id., ¶26 (citations omitted).
We need not consider whether trial counsel’s performance was deficient if we can
resolve the ineffectiveness issue on the ground of lack of prejudice. State v. Moats,
156 Wis. 2d 74, 101, 457 N.W.2d 299 (1990). Counsel does not render ineffective
assistance by failing to raise a meritless issue or make a meritless objection. See
State v. Cameron, 2016 WI App 54, ¶27, 370 Wis. 2d 661, 885 N.W.2d 611.

¶5 On appeal, Butler challenges the circuit court’s denial of his claims
that postconviction counsel was ineffective because counsel did not challenge the
assistance rendered by trial counsel in two instances: (1) trial counsel failed to

4
The circuit court’s March 8, 2019 order denying Butler’s original WIS. STAT. § 974.06
motion does not state any reasons for rejecting the ineffective assistance of postconviction
counsel claims pursued on appeal. “[R]egardless of the extent of the trial court’s reasoning, we
will uphold a discretionary decision if there are facts in the record which would support the trial
court’s decision had it fully exercised its discretion.” State v. Payano, 2009 WI 86, ¶41, 320
Wis. 2d 348, 768 N.W.2d 832 (citation omitted).

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No. 2019AP637

object to the State’s implication that Butler was a gang member and (2) trial
counsel failed to object to inadmissible identification testimony. We discuss the
facts as necessary to resolve these claims.

¶6 The following evidence was adduced at trial. The victim, who was
shot during an armed robbery outside his home, described being confronted by a
man with a gun whose face covering slipped away during the crime. The victim
was shot in the wrist as he tried to run away. While he was in the hospital’s
emergency department, he told police that the shooter was either Butler or
someone named “Cuda.” When the victim reviewed photo arrays containing
photographs of Butler and Cuda, he was able to identify a photo of each man, but
the resemblance between the two men left the victim unable to determine which
one shot him. However, after seeing Cuda in person several times after the crime,
the victim determined that Cuda was not the shooter.5 The victim attended
Butler’s revocation hearing, and upon seeing Butler at the hearing, the victim
recognized him as the shooter. Butler’s brother and mother contacted the victim
and told him that he could shoot Butler in the leg if he agreed not to testify against
him. On cross-examination, Butler’s counsel asked the victim if he initially

5
There was no evidence that Cuda took part in the armed robbery.

Butler argues that the victim actually identified Cuda as the shooter when he annotated
Cuda’s photo in the photo array with a note that he was “150% certain” it was Cuda. As the
victim testified at trial, his note meant that he was 150% certain that the photograph depicted
“one of the guys that robbed you,” not that Cuda was the shooter. At that point, the victim was
unsure who shot him. Detective Falk testified that the victim never told him that Cuda was the
shooter. It was for the jury to assess the weight and credibility of this evidence. See State v.
Johnson, 2004 WI 94, ¶20, 273 Wis. 2d 626, 681 N.W.2d 901.

4
No. 2019AP637

believed that the shooter was part of a gang, and the victim responded that he
believed the shooter was a member of The Firm, a gang.

¶7 One of the four participants in the crime, Hardy, told law
enforcement officers that Butler had the gun and when the victim started running
away, Butler shot at him. Butler later told Hardy that if he talked about the
incident, Butler would kill him. Edwards, an acquaintance of Butler, testified that
Butler called her from jail and told her to tell the police he was with her the night
of the crime, which was not true. Armstrong, Butler’s former girlfriend, testified
that she saw Butler with the others Hardy identified on the night of the crime. On
cross-examination, Butler’s counsel asked Armstrong how many of the people she
saw on the night of the crime were members of The Firm, and she replied it could
have been three (Hardy, Buchanan, and one other). Although, Armstrong did not
include Butler in her list of possible gang members, on redirect examination,
Armstrong testified that she did know that Butler was part of the gang. Buchanan
testified that Butler was with a group of individuals Hardy, a co-actor, identified
as being together on the night of the crime.

¶8 Detective Falk testified that when the victim described the suspects
to him as “Cuda” and “Impact’s” little brother, the detective knew the identity of
these individuals based on his work in the Gang Crimes Unit. Through his gang
work, the detective knew that Impact is Butler’s older brother, Marcus. The
detective was also familiar with Buchanan, whom the detective observed being
intimidated outside the courtroom by Marcus.6

6
Butler’s trial counsel objected to any implication that Butler was present at the time of
the intimidating conduct and clarified before the jury that Butler was in the courtroom at the time.

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No. 2019AP637

¶9 In his WIS. STAT. § 974.06 motion, Butler alleged that his
postconviction counsel should have challenged trial counsel’s failure to object to
the State’s numerous implications that he was a gang member. He argues on
appeal that the gang references were prejudicial to him.

¶10 As a threshold matter, we observe that it was Butler who first
interjected gang-related evidence in the case. During his opening statement,
Butler’s trial counsel broached the topic of members of The Firm being involved
in the crime, specifically, Hardy. Trial counsel elicited gang-related evidence
during his cross-examination of Armstrong which occurred before the State
elicited gang-related evidence during its examination of Detective Falk.

¶11 If the gang-related evidence was offered to provide background or
context in the case, such evidence was not prohibited by WIS. STAT. § 904.04(2).
See State v. Hereford, 195 Wis. 2d 1054, 1069, 537 N.W.2d 62 (Ct. App. 1995).

¶12 If the gang-related evidence was other acts evidence under WIS.
STAT. § 904.04(2), then it would have been admissible under § 904.04(2) if it was
relevant, offered for a permissible purpose and not unfairly prejudicial. See State
v. Marinez, 2011 WI 12, ¶18, 331 Wis. 2d 568, 797 N.W.2d 399. The record
shows that the gang evidence figured in to how certain witnesses identified Butler
as the shooter, a proper use of such evidence under § 904.04(2)(a).7

¶13 “The standard for unfair prejudice is … whether the evidence tends
to influence the outcome of the case by ‘improper means.’” State v. Johnson, 184

7
The victim initially identified Butler as one of two suspects. The victim described
Butler as Impact’s little brother. The detective testified that he was familiar with Impact as a
result of his gang work.

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No. 2019AP637

Wis. 2d 324, 340, 516 N.W.2d 463 (Ct. App. 1994) (citation omitted). Butler’s
ineffective assistance of counsel claim also requires a showing of prejudice, i.e., it
is reasonably probable that had trial counsel objected to the gang evidence the
outcome at trial would have been changed. See Jeannie M.P., 286 Wis. 2d 721,
¶26. On this record, we conclude that Butler cannot show either that the gang
evidence tended to influence the outcome of the case by improper means or the
prejudice required for an ineffective assistance of counsel claim. The gang
evidence consisted of Armstrong’s testimony on cross-examination that she did
not agree that Butler was a gang member and Detective Falk’s testimony that he
was familiar with Butler through his gang work. In light of the other evidence in
the case, particularly that the victim and Hardy, Butler’s co-actor, identified Butler
as the shooter, Butler threatened to kill Hardy if he discussed the crime, Butler was
with Hardy on the night of the crime, and Butler’s direction to Edwards to tell the
police he was with her on the night of the crime,8 the gang evidence was not
unfairly prejudicial and it was not reasonably probable that an objection to that
evidence by trial counsel would have changed the outcome at trial. See id. The
record conclusively demonstrates that Butler cannot prevail on his claim that
postconviction counsel was ineffective for not challenging trial counsel’s failure to
object to the gang evidence. See Cameron, 370 Wis. 2d 661, ¶27.

¶14 Butler next claims that his postconviction counsel should have
challenged trial counsel’s failure to object to allegedly inadmissible identification
testimony. The victim testified that until he saw Butler at his revocation hearing,
he was not sure that Butler was the shooter. Because the victim’s identification

8
It was for the jury to assess the credibility of the witnesses. See Johnson, 273 Wis. 2d
626, ¶20.

7
No. 2019AP637

was aided by his encounter with Butler at the revocation hearing, Butler argues
that the identification was the result of an impermissibly suggestive showup at the
revocation hearing.

¶15 We conclude that any objection to the victim’s identification of
Butler would not have succeeded because Butler’s identification did not arise from
a showup. A showup identification “denotes a police procedure,” which is defined
as “an out-of-court pretrial identification procedure in which a suspect is presented
singly to a witness for identification purposes.” State v. Hibl, 2006 WI 52, ¶33,
290 Wis. 2d 595, 714 N.W.2d 194 (citation omitted). The victim first named
Butler as a suspect when he was in the emergency department after the shooting.
Thereafter, the victim excluded Cuda. However, seeing Butler at his revocation
hearing confirmed for the victim what he suspected immediately after the crime:
Butler was involved. The record does not show that the victim’s presence at the
revocation hearing was arranged by law enforcement such that showup
identification law might apply in the first instance.9 See id. Therefore,
postconviction counsel was not ineffective for failing to challenge trial counsel’s
handling of the victim’s identification of Butler. See Cameron, 370 Wis. 2d 661,
¶27.

¶16 The record conclusively demonstrates that Butler was not entitled to
relief on his WIS. STAT. § 974.06 motion. Therefore, the circuit court did not

9
While Butler alleges in his postconviction motion and on appeal that the State arranged
for the victim’s attendance at Butler’s revocation, there is no evidence in the record supporting
that claim.

Showup identification procedures are now evaluated under the standard set out in State v.
Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813. Under Roberson, a defendant must
demonstrate that the circumstances of a showup were impermissibly suggestive. Id., ¶82.

8
No. 2019AP637

misuse its discretion when it denied the motion without an evidentiary hearing.
See Balliette, 336 Wis. 2d 358, ¶18.10

By the Court.—Orders affirmed.

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

10
To the extent we have not addressed an argument raised on appeal, the argument is
deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147
(1978) (“An appellate court is not a performing bear, required to dance to each and every tune
played on an appeal.”).

9