State v. Latonio D. Simpson

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.
March 31, 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. 2019AP2077-CR Cir. Ct. No. 2016CF1203

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LATONIO D. SIMPSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: MARY KAY WAGNER, Judge. Affirmed.

Before Neubauer, C.J., Gundrum and Davis, 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. 2019AP2077-CR

¶1 PER CURIAM. Latonio D. Simpson appeals from a judgment of
conviction for one count of first-degree intentional homicide, by use of a
dangerous weapon, as a party to a crime. See WIS. STAT. §§ 940.01(1)(a), 939.05,
939.63(1)(b) (2015-16).1 He also appeals from an order denying his
postconviction motion for sentence modification or resentencing. Simpson argues:
(1) the judgment should be vacated because he was not formally arraigned and,
therefore, the trial court lacked competency to proceed; (2) the trial court
erroneously exercised its discretion when it limited Simpson’s cross-examination
of a detective and the error was not harmless; (3) the trial court erred when it
denied Simpson’s request to instruct the jury on first-degree reckless homicide;
and (4) the sentence requiring Simpson to serve fifty years in prison before being
eligible for extended supervision was harsh and excessive. We reject Simpson’s
arguments and affirm.

BACKGROUND

¶2 The criminal complaint alleged that sixteen-year-old Simpson and a
man named James L. Butler both fired guns at Willie Owens, who lived in a house
where Simpson, Butler, and several other men had an argument earlier in the day.
Owens died of his gunshot wounds. Simpson was charged with first-degree
intentional homicide.2

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
The record indicates that Butler was also charged; however, he died before he could be
apprehended.

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No. 2019AP2077-CR

¶3 The trial court denied Simpson’s motion for a reverse waiver to
juvenile court, and the case proceeded to a jury trial where Simpson testified in his
own defense. Simpson admitted that after the argument earlier in the day, he,
Butler, and two other men returned to the house; Butler and Simpson both had
guns. At the house, they exchanged words with men on the porch who, according
to Simpson, also had guns.3 Owens spoke with Butler and then approached him.
Butler pushed Owens and “pulled his gun out.” Simpson described what
happened next:

I looked up to make sure there was no police coming
because we could get in trouble for having guns.

Before you knew it, as I’m looking off, I heard shots. I
started running. I pulled a gun out. As I’m … running, I’m
hearing shots. I started firing over my shoulder.

¶4 In contrast to Simpson’s testimony, the two men who were with
Simpson and Butler testified that after Owens was shot by Butler, Owens fell to
the ground, and Simpson stood over him and shot him before fleeing the scene. In
addition, several witnesses testified that Simpson subsequently made statements
that implied he was not running away when he shot Owens. Specifically, the
woman who drove Simpson and Butler away from the scene said she heard
Simpson ask Butler, “[D]id you see his eyes? Did you see his eyes when the
bullets hit him?”

¶5 Later that night, Butler, Simpson and others went to the woman’s
house to drink, smoke marijuana, and play cards. One man who was at the house
that night testified that he heard Simpson and Butler talking about shooting

3
None of the other witnesses, including the two men who accompanied Simpson and
Butler, testified that Owens and the others at the home displayed guns.

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No. 2019AP2077-CR

Owens. The witness testified they said that Butler “started in the knee and worked
his way up and [Simpson] said, I finished him off.” Another witness who was at
the house testified that he also heard Simpson say, “I finished him off.”

¶6 The jury was instructed on first-degree intentional homicide and
second-degree intentional homicide, both as a party to a crime and by use of a
dangerous weapon. The jury was also instructed on self-defense. The jury found
Simpson guilty of first-degree intentional homicide, which carries a mandatory
sentence of life imprisonment. See WIS. STAT. § 939.50(3)(a) (2015-16). At
sentencing, the trial court was required to determine whether Simpson would be
ineligible for extended supervision, eligible after twenty years, or eligible at a date
beyond twenty years. See WIS. STAT. § 973.014(1g). The trial court made
Simpson eligible for extended supervision after serving fifty years.

¶7 Simpson filed a postconviction motion seeking sentencing
modification or resentencing. He argued that he is serving “a virtual life sentence”
and that the trial court “failed to fully address and account for Simpson’s age” and
his “immaturity and vulnerability to being manipulated and even coerced.” The
trial court held a motion hearing and denied the motion. This appeal follows.

DISCUSSION

¶8 Simpson challenges his conviction and sentence on numerous
grounds. We consider each issue in turn.

I. Challenge to the trial court’s competency to proceed.

¶9 Simpson argues that the trial court’s failure to conduct an
arraignment requires this court to vacate his conviction because the trial court lost
competency to proceed. It is undisputed that at the conclusion of the preliminary

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No. 2019AP2077-CR

hearing, the trial court found probable cause that Simpson had committed first-
degree intentional homicide, by use of a dangerous weapon, as a party to a crime.
Trial counsel acknowledged receipt of the information, waived its formal reading,
and said that Simpson was “aware of the charge against him, as well as the
maximum possible penalties.” Trial counsel said that he did not want Simpson to
formally enter a plea until the reverse waiver hearing was completed, to ensure
that he was not waiving his rights.

¶10 The State did not object to delaying the entry of a plea, indicating
that if Simpson was unsuccessful at the reverse waiver hearing, Simpson could be
arraigned at that time. The trial court agreed to Simpson’s request. Three months
later, the trial court denied the reverse waiver. At the conclusion of the reverse
waiver hearing, the parties discussed scheduling, but they did not return to the
arraignment, and Simpson did not formally enter a not guilty plea. After
numerous delays and a mistrial, the case was eventually tried to a jury eight
months later, resulting in Simpson’s conviction.

¶11 We agree with the State that the trial court did not lose competency
to proceed. Our supreme court considered this issue long ago, in Hack v. State,
141 Wis. 346, 124 N.W. 492 (1910). In Hack, “[b]y a singular oversight the
defendant was not formally arraigned in the circuit court, and never pleaded to the
information.” Id. at 349. The supreme court declared: “[T]he right of
arraignment and plea will be waived by the defendant by his silence when he
ought to demand it, in all cases (except capital cases) where it appears that he is
fully informed as to the charge against him, and is not otherwise prejudiced in the
trial of the case by the omission of that formality.” Id. at 353.

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No. 2019AP2077-CR

¶12 In subsequent cases, the supreme court held that “where there was
no objection to an arraignment held after commencement of trial and no showing
of prejudice by reason of the delay, the right to a more timely arraignment and
plea would be deemed waived.” See Bies v. State, 53 Wis. 2d 322, 325, 193
N.W.2d 46 (1972) (citing Bridges v. State, 247 Wis. 2d 350, 375, 19 N.W.2d 862
(1945)); see also State v. Martinez, 198 Wis. 2d 222, 235, 542 N.W.2d 215 (Ct.
App 1995) (holding that trial court had authority to proceed even though
information was not read to the defendant at the arraignment, where defendant did
not object or subsequently allege prejudice) (citing Hack and Bies).

¶13 Simpson argues that Bies and Bridges “are limited solely to
arraignments which are untimely, but are conducted before jury deliberations and
verdicts.” He further asserts: “[L]egislative developments since Hack strongly
suggest the components of an arraignment in a criminal prosecution is essential to
the statutory scheme and Simpson asserts a defendant’s mere silence cannot waive
this formal procedural responsibility even while he is fully informed of the
charges.”

¶14 We are not persuaded that legislative enactments have overruled
Hack, and we do not have authority to overrule our supreme court or our prior
decisions. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).
Simpson did not raise the issue concerning the lack of a formal arraignment until
his appeal, and he has not demonstrated that he was prejudiced by the oversight.
He is not entitled to relief.

II. Limitation of a detective’s testimony.

¶15 At trial, the State introduced testimony from the detective who
interviewed Simpson after his arrest. On cross-examination, trial counsel asked

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No. 2019AP2077-CR

the detective, “During your interview with Mr. Simpson, did you indicate to him
that, quote, I believe you just got scared. When that shit happened, you were
afraid and you popped off a couple rounds, not trying to kill anybody?” The State
objected on two grounds: relevancy and hearsay. After a sidebar, the trial court
sustained the objection. It does not appear that the reason for the trial court’s
ruling was ever explained on the record.

¶16 Simpson argues that the trial court’s discretionary ruling was
erroneous and that the exclusion of the detective’s statement was not harmless
error. He asserts:

The ruling limiting the detective’s cross-examination is
not harmless because the jury was denied the only
opportunity it would have to reconcile Simpson’s
confession and, ultimately, his trial testimony supporting
the lesser-included verdict. There was, of course, trial
testimony inconsistent with Simpson’s version of the event.
It was, therefore, critical if the jury were to find guilt of the
lesser-included homicide, that Simpson’s youthful attempt
to describe the complicated sequence and origin of the
shots he fired were clearly understood and his credibility
and accuracy fairly evaluated by the jury.

¶17 As best we can discern, Simpson believes that asking the detective to
confirm that the detective made that particular statement during the interview was
important because it suggested that Simpson told the detective he acted out of fear
and the detective actually believed him. However, as the State points out, the
detective subsequently explained that one tactic he uses to induce defendants to
answer questions is to minimize their role in the offense. The detective indicted
that when he uses this tactic, he does not “necessarily” hold the opinion that the
defendant’s role in the offense was minimized. In light of this testimony, it is
highly unlikely that allowing the detective to testify about the statement he made
to Simpson would have had the desired effect.

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No. 2019AP2077-CR

¶18 Even if Simpson is correct that the jury needed to hear a statement
from the detective acknowledging that Simpson acted out of fear, the State has
identified a similar statement from the detective that was admitted at trial.
Specifically, when the State was cross-examining Simpson, it noted that during the
interview, the detective told Simpson, “Well, you were probably scared. You
know, you were probably doing this because you were scared.”

¶19 We conclude that because this similar statement was admitted later
in the trial, and because the excluded statement was highly unlikely to have the
desired effect, any potential error by the trial court in sustaining the objection to
trial counsel’s question earlier in the trial was harmless. See State v. Monahan,
2018 WI 80, ¶33, 383 Wis. 2d 100, 913 N.W.2d 894 (“An erroneous evidentiary
ruling is reversible only if ‘a substantial right of the party is affected.’”) (quoting
WIS. STAT. § 901.03(1)). Therefore, we will not further discuss whether the
State’s objection to the defense’s question to the detective was properly sustained.

III. Denial of request for first-degree reckless homicide instruction.

¶20 During the jury instruction conference, Simpson asked the trial court
to instruct the jury on first-degree reckless homicide, which the parties agree is a
lesser-included offense of first-degree intentional homicide.4 See State v.
Morgan, 195 Wis. 2d 388, 440, 536 N.W.2d 425 (Ct. App. 1995). The trial court
denied the request, explaining: “It isn’t reckless conduct. It was deliberate with
self-defense or deliberate with privilege in some manner or form. But I don’t

4
The trial court also denied Simpson’s request for an instruction on second-degree
reckless homicide. Simpson has explicitly abandoned that claim on appeal so we will not discuss
it.

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No. 2019AP2077-CR

think it’s reckless. I don’t think … that fits the evidence that we’ve had in this
case.” Simpson now challenges that decision.

¶21 Whether a trial court properly refused to instruct the jury on a lesser-
included offense is an issue of law that we review de novo. State v. Borrell, 167
Wis. 2d 749, 779, 482 N.W.2d 883 (1992), overruled on other grounds by State v.
Greve, 2004 WI 69, ¶31, 272 Wis. 2d 444, 681 N.W.2d 479. “In determining the
propriety of a defendant’s request for a lesser-included offense instruction, the
evidence must be viewed in the light most favorable to the defendant and the
requested instruction.” State v. Foster, 191 Wis. 2d 14, 23, 528 N.W.2d 22 (Ct.
App. 1995). “The submission of a lesser-included offense instruction is proper
only when there exists reasonable grounds in the evidence both for acquittal on the
greater charge and conviction on the lesser offense.” Borrell, 167 Wis. 2d at 779.
“[T]he lesser-included offense should be submitted only if there is a reasonable
doubt as to some particular element included in the higher degree of crime.”
Foster, 191 Wis. 2d at 23 (citation omitted).

¶22 The crime of first-degree reckless homicide is committed by one
who “recklessly causes the death of another human being under circumstances
which show utter disregard for human life.” See WIS. STAT. § 940.02(1); see also
WIS JI—CRIMINAL 1020. Simpson argues that the jury should have been
instructed on first-degree reckless homicide because “[t]he jury could have
reasonably determined, based on trial testimony of eyewitnesses, [that] Simpson
fired one or more shots toward Owens before he simultaneously turned and ran
firing over his shoulder.” He argues that his “discharge of his weapon as he turned
and ran is consistent with reckless homicide as it arguably exhibited, under those
circumstances, utter disregard for human life.”

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No. 2019AP2077-CR

¶23 We conclude that the trial court properly refused to instruct the jury
on first-degree reckless homicide because the basis for Simpson’s claim that his
conduct was merely reckless—that he fired his gun over his shoulder as he was
running away, hitting Owens in the chest—was contradicted by the physical
evidence. It was undisputed that the bullet that entered Owens’s chest and lodged
in his back came from the gun Simpson fired. The assistant medical examiner
testified that the bullet “move[d] in a downward trajectory through [Owens’s]
body so it would be consistent with a gun having been fired in a downward
direction.” Simpson’s testimony is contradicted by the physical evidence and does
not provide “reasonable grounds … both for acquittal on the greater charge and
conviction on the lesser offense.” See Borrell, 167 Wis. 2d at 779.

IV. Challenge to Simpson’s sentence.

¶24 Simpson argues that the trial court’s decision to make Simpson
eligible for extended supervision only after serving fifty years of initial
confinement was harsh and excessive. First, he challenges the trial court’s
exercise of discretion. He asserts that the trial court “failed to fully address and
account for his age at the time of the crimes, or how children are different, or how
Simpson’s immaturity and vulnerability to being manipulated or even coerced by
gang culture mitigate his culpability.” He contends that if the trial court had fully
considered those factors, it would not have imposed “a virtual life sentence.”

¶25 At sentencing, the trial court must consider the principal objectives
of sentencing, including the protection of the community, the punishment and
rehabilitation of the defendant, and deterrence to others, State v. Ziegler, 2006 WI
App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76, and it must determine which
objective or objectives are of greatest importance, State v. Gallion, 2004 WI 42,

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No. 2019AP2077-CR

¶41, 270 Wis. 2d 535, 678 N.W.2d 197. In seeking to fulfill the sentencing
objectives, the circuit court should consider a variety of factors, including the
gravity of the offense, the character of the offender, and the protection of the
public, and it may consider additional factors. State v. Odom, 2006 WI App 145,
¶7, 294 Wis. 2d 844, 720 N.W.2d 695. The weight to be given to each factor is
committed to the trial court’s discretion. See State v. Stenzel, 2004 WI App 181,
¶16, 276 Wis. 2d 224, 688 N.W.2d 20.

¶26 Applying those standards, we reject Simpson’s argument that the
trial court erroneously exercised its sentencing discretion. The trial court
considered the parties’ sentencing arguments, which included a discussion of
Simpson’s age and his developing brain. When the trial court made its sentencing
decision, it discussed each of the principal sentencing objectives, identifying key
facts about the crime, Simpson’s character, and his “serious rehabilitative needs.”
For instance, when it discussed the crime, the trial court noted that Owens “was
not involved in any argument with anybody” and had tried to serve as a
peacemaker, telling the men that they were not going to fight on his property. The
trial court rejected Simpson’s version of the shooting, stating: “[T]he story of
shooting over one’s shoulder and running away is just nonsensical, and [t]he
[c]ourt does adopt the theory and the testimony that you stood over this gentleman
and pointed that gun at him and shot him in the chest.” Our review of the
sentencing transcript leads us to conclude that the trial court applied the standard
sentencing factors and explained their application in accordance with the
framework set forth in Gallion and its progeny. In doing so, the trial court did not
erroneously exercise its discretion.

¶27 Simpson’s second argument is that a sentence requiring him to serve
fifty years before he is eligible for extended supervision is unconstitutional under

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No. 2019AP2077-CR

the Eighth Amendment because it is “harsh and excessive.” He cites United States
Supreme Court case law discussing the development of juvenile brains and the
constitutionality of imposing sentences that will not allow the juvenile an
opportunity for release. See, e.g., Miller v. Alabama, 567 U.S. 460, 465 (2012)
(holding that mandatory sentences of life without parole for those who committed
crimes as juveniles are unconstitutional).

¶28 We are not persuaded that Simpson’s sentence is unconstitutional.
First, the United States Supreme Court has not foreclosed life sentences without
parole for juveniles. See id. at 479 (declining to consider whether life sentences
without parole are categorically barred for juveniles and indicating that
“appropriate occasions for sentencing juveniles to this harshest possible penalty
will be uncommon”); see also State v. Barbeau, 2016 WI App 51, ¶¶32, 37-38,
370 Wis. 2d 736, 883 N.W.2d 520 (holding that “it is not unconstitutional to
sentence a juvenile to life imprisonment without the possibility of supervised
release for intentional homicide if the circumstances warrant it” and rejecting
constitutional challenge to state statute that requires all defendants convicted of
first-degree intentional homicide, including those who committed their crimes as
juveniles, to serve a minimum of twenty years in prison before being eligible for
extended supervision).

¶29 More importantly, the sentence imposed in this case does not deny
Simpson the possibility of release; he is eligible for extended supervision after
serving fifty years. Simpson refers to this as a “de facto life sentence,” but he will
be eligible for release when he is sixty-six years old. Simpson asserts that “most
state appellate courts hav[e] held that a single sentence deferring eligibility for 50
years or more is a de facto life sentence,” but he does not identify those states.
Instead, he provides a general citation to a January 2019 article in the State Bar of

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No. 2019AP2077-CR

Wisconsin’s Wisconsin Lawyer magazine. In any event, it is undisputed that
Wisconsin is not one of the states that has held that setting eligibility for extended
supervision at fifty years for someone who committed homicide at age sixteen is a
de facto life sentence, and we are not persuaded it is.

¶30 The State urges this court to affirm, arguing:

Simpson cites to no controlling authority that says
sentencing a 17-year-old to life imprisonment with
eligibility for supervision when he is 66 years old for a
wanton and callous first-degree intentional homicide
constitutes cruel and unusual punishment. Considering the
[trial] court’s findings concerning the severity of Simpson’s
offense, his lack of remorse, and the effect on the
community, Simpson’s sentence does not shock the public
conscience. Thus, no constitutional violation occurred.

We agree with this analysis and conclude that the trial court’s sentence making
Simpson eligible for extended supervision after serving fifty years does not violate
the Eighth Amendment.

By the Court.—Judgment and order affirmed.

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

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