State v. Edwin D. Hughes

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 30, 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. 2020AP344-CR Cir. Ct. No. 2017CF44

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EDWIN D. HUGHES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Oneida County: PATRICK F. O’MELIA, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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).

¶1 PER CURIAM. Edwin Hughes appeals from a judgment convicting
him of three felonies and from an order denying his postconviction motion.
No. 2020AP344-CR

Hughes challenges the admission at trial of other acts evidence and a recording of
a 9-1-1 call, and he claims his trial counsel provided ineffective assistance in
several respects. We reject all of Hughes’ claims and affirm.

BACKGROUND

¶2 The State charged Hughes with being party to the crimes of
first-degree reckless injury, attempted armed robbery, armed burglary, and
operating a motor vehicle without the owner’s consent. The charges all arose from
a home invasion in which two masked intruders, one white and one black,
allegedly pushed their way into a house in Oneida County and demanded money
before shooting the homeowner, David Parker,1 in the legs and driving Parker’s
car away from the house. During the police investigation, Daniel Frausto admitted
to being one of the intruders and named Hughes as his accomplice. Parker died
prior to trial, and Frausto became the key prosecution witness. We limit our
discussion of the trial evidence to that which is being challenged on appeal or is
relevant to our analysis of the challenged evidence.

¶3 Frausto testified that he and Hughes targeted Parker for the burglary
because Parker owned a “gentlemen’s club” featuring “adult entertainment” and
they thought he was likely to have cash in his home. Frausto and Hughes spent
about a month before the burglary researching Parker and his residence. Frausto
and Hughes wore black “snowmobile garb,” including ski masks and gloves, for
the burglary so that they could feign needing help to gain entrance to Parker’s

1
This matter involves the victim of a crime. Pursuant to WIS. STAT. RULE 809.86(4)
(2019-20), we use a pseudonym instead of the victim’s name. All references to the Wisconsin
Statutes are to the 2019-20 version unless otherwise noted.

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house while “blending in.” Frausto was armed with a .38 revolver, and Hughes
had a 9mm handgun.

¶4 According to Frausto, when Parker opened his door, Frausto and
Hughes “flew in” and Frausto hit Parker on the head with a snowmobile helmet.
Hughes then forced Parker to the ground, and Frausto threw a blanket over his
head. Hughes stayed with Parker asking where “the money was” and for the
combination to the safe, while Frausto searched the house for the safe or cash.
Parker kept “squirming around,” so Hughes pressed his gun against Parker’s leg to
remind him he was armed. Frausto told Hughes several times to just shoot Parker
if Parker kept moving around, in order to scare Parker into compliance. Frausto
found a safe, which he threw over an upper-level balcony toward Parker in
frustration at being unable to open it and to further intimidate Parker. Before
getting the safe open, however, Frausto heard a gunshot.

¶5 Once Frausto saw that Parker had been shot and that the injury could
be serious, he decided he and Hughes should “cut [their] losses.” Frausto and
Hughes left Parker’s house and drove Parker’s car down the driveway to where
they had left their own vehicle, then switched cars. Hughes told Frausto that he
had retrieved the shell casing before leaving Parker’s house, and he threw it out
the car window. Frausto subsequently disassembled Hughes’ 9mm and disposed
of it in the Fox River.

¶6 Pursuant to a pretrial ruling, Frausto also testified about a series of
additional crimes that Frausto claimed to have committed with Hughes and
another man, Robert Miles, over a two-year period encompassing the date of the
crimes charged here. Frausto said there were a “pretty substantial number” of
burglaries and robberies, but he could not say exactly how many. They targeted

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the owners of businesses that commonly dealt in cash. Frausto stated that he,
Hughes and Miles wore gloves in all of the crimes to conceal their identities and
also wore masks during all of the robberies. They typically took cash and any
firearms that happened to be in a safe with the cash, but they generally did not take
jewelry or personal effects that might be easily identifiable.

¶7 Frausto described three specific prior incidents involving Hughes—
one aborted burglary/robbery that occurred in Appleton, one completed
burglary/robbery that occurred in Dane County, and one aborted burglary/robbery
that occurred in Winnebago County. Each of the residences was targeted because
Frausto had reason to believe the homeowner might have substantial amounts of
cash—one being a bar/restaurant owner, one having sold two vehicles for cash,
and one owning a propane delivery company that accepted cash payments. In the
Dane County incident, Hughes “stretched” one of the residents out on the ground
at gunpoint while Frausto searched the house for a safe. In the Appleton and
Winnebago County incidents, Hughes and Frausto ran off when they encountered
someone unexpected. Frausto also mentioned that he “did” two other adult
entertainment clubs, which were in his “wheelhouse.” Frausto did not specify,
however, whether Hughes had participated in those particular robbery/burglaries
or whether they targeted the owners’ homes or the clubs themselves.

¶8 During Frausto’s testimony, the State introduced Exhibit 24 into
evidence. The exhibit contained a “synopsis” or “timeline” of twenty-two
robbery/burglaries that had occurred in Outagamie, Dane, Calumet, Waupaca,
Oneida, Oconto, Fond du Lac, Winnebago and Portage Counties. Ten of the
robbery/burglaries were alleged to have been committed by Hughes and Frausto;
six were alleged to have been committed by Hughes, Frausto and Miles; one was
alleged to have been committed by Hughes and Miles; two were alleged to have

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been committed by Frausto and Miles; two were alleged to have been committed
by Frausto alone; and one was alleged to have been committed by Miles alone.
Frausto reviewed the exhibit while he was on the stand and he stated that it was
accurate. However, Frausto did not testify about any additional specific
robbery/burglaries listed on the exhibit in which Hughes participated—instead
confirming that he and Miles had committed a number of robbery/burglaries on
the list without Hughes. Exhibit 24 was not published to the jury at the time it was
admitted into evidence, and it was not among the documents sent to the jury room
during deliberations.

¶9 Miles similarly testified that he had committed an unspecified
number of “burglaries” and “property crimes” with Hughes and Frausto, all
targeting “homes owned by business owners.” They would do research in advance
and were looking for older people who had no kids and who owned businesses or
had a high income. They “mostly” just took cash and guns and they would
normally not take jewelry or electronics. Miles testified specifically about the
same aborted Winnebago County robbery that Frausto had described. Miles stated
that he had broken a side mirror off the orange Saturn Vue he was driving while
making a U-turn near that residence to pick up Hughes and Frausto following their
aborted attempt. To Miles’ knowledge, Hughes was the only black man who had
committed burglaries with Frausto.

¶10 Jack Theyerl, a detective with the Winnebago County Sheriff’s
Office, testified that he had been personally involved in investigating several
home-invasion burglaries in his county, including collecting evidence at the
scenes. Theyerl believed the burglaries were linked because they all targeted
business owners with cash or safes in their homes, otherwise commonly stolen
items such as electronics and jewelry were left behind, and “class match[]” shoe

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impressions with the same sole patterns were recovered from several scenes.
Based on the shoe impressions and unspecified “witness information that was
provided,” Theyerl further opined that more than one person was involved in the
Winnebago County burglaries. During his investigation, Theyerl became aware of
crime alerts from other counties involving burglaries with safes that had been cut
open. Theyerl also exchanged information with law enforcement in other
jurisdictions, including Oneida County, about home invasions targeting business
owners.

¶11 Law enforcement eventually traced the mirror from the orange
Saturn Vue recovered near the site of the aborted Winnebago County robbery to
Miles. That trace led to Miles’ apprehension and Miles’ subsequent disclosure
that Miles, Frausto and Hughes were all involved in the string of home invasions
that were being investigated in multiple counties. Once interviewed, Frausto also
told law enforcement about his involvement in multiple burglaries and specifically
implicated Hughes in the Oneida County robbery/burglary that is the subject of
this appeal. Law enforcement then recovered some snowmobile helmets from
Frausto’s residence—one of which Frausto said was used to strike Parker.

¶12 Pursuant to another pretrial ruling, the State introduced a recording
and transcript of a 9-1-1 call made by Parker. On the call, Parker immediately told
the dispatcher that “[a] guy just robbed [him] and shot [him] …in the legs” at his
house and that he was “bleeding all over the place.” After ascertaining Parker’s
name and address, the dispatcher proceeded to ask a number of questions about
what had happened. In response to those questions, Parker stated that he had been
shot with a pistol and identified the intruders as two masked males, one black and
one white. Parker further described the intruders as “[t]wo taller guys” who were
“both about six one” and taller than Parker. Parker said he had opened the door,

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No. 2020AP344-CR

not knowing who was there, and had immediately been “smacked” in the face with
“[g]uns or something.” Parker also told the dispatcher, “Catch these mother
fuckers, they’re bad.” Throughout the call, Parker continued to assert that he was
bleeding and asked the dispatcher to “hurry.” The dispatcher observed that Parker
appeared to have lost consciousness at one point, told him to “[s]tay with me,” and
reassured him that help was on the way.

¶13 The jury found Hughes guilty of being a party to the lesser-included
offense of first-degree reckless injury and the other three offenses charged.
Hughes filed a postconviction motion renewing challenges to the circuit court’s
pretrial rulings on other acts evidence and to the 9-1-1 call as hearsay. Hughes
further claimed that his trial counsel provided ineffective assistance by failing to
raise a foundation objection to Theyerl’s testimony and by failing to request jury
instructions related to accomplices and witnesses who had been granted
concessions. The court denied the postconviction motion without a hearing, and
Hughes now appeals.

DISCUSSION

¶14 Circuit courts have broad discretion to admit or exclude evidence
and to control the order and presentation of evidence at trial. State v. James, 2005
WI App 188, ¶8, 285 Wis. 2d 783, 703 N.W.2d 727. We will set aside such
discretionary determinations only if the court has failed to apply a relevant statute
or consider legally relevant factors, or it has acted based upon mistaken facts or an
erroneous view of the law. Id.; Duffy v. Duffy, 132 Wis. 2d 340, 343, 392
N.W.2d 115 (Ct. App. 1986). Evidentiary rulings that have been previously
preserved by objection do not need to be raised in a postconviction motion.

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No. 2020AP344-CR

WIS. STAT. § 974.02(2); see also State v. Hayes, 167 Wis. 2d 423, 425-26, 481
N.W.2d 699 (Ct. App. 1992).

¶15 To obtain a hearing on a postconviction motion, a defendant must
allege material facts sufficient to warrant the relief sought. State v. Allen, 2004
WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d 433. No hearing is required,
though, when the defendant presents only conclusory allegations or when the
record conclusively demonstrates that he or she is not entitled to relief. Nelson v.
State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972).

1. Other Acts Evidence

¶16 Hughes first contends the testimony of Frausto and Theyerl about
the series of home invasions was impermissible other acts evidence. As a general
matter, evidence of “other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that the person acted in conformity
therewith.” WIS. STAT. § 904.04(2)(a). Nonetheless, other acts evidence may be
admitted to show some “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id. Other acts evidence may also be
admitted to provide context or a complete explanation of the crime, or to bolster
the credibility of a witness. State v. Hunt, 2003 WI 81, ¶¶58-59, 263 Wis. 2d 1,
666 N.W.2d 771.

¶17 Other acts evidence offered for a permissible purpose still must be
relevant under WIS. STAT. §§ 904.01 and 904.02, in that such evidence relates to a
fact or proposition of consequence to the determination of the action, and its
probative value must not be substantially outweighed by the danger of unfair
prejudice or confusion of issues under WIS. STAT. § 904.03. State v. Sullivan, 216
Wis. 2d 768, 785-89, 576 N.W.2d 30 (1998). Establishing a distinct

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No. 2020AP344-CR

modus operandi is particularly probative of intent, plan or identity. State v.
Hurley, 2015 WI 35, ¶¶64-65, 361 Wis. 2d 529, 861 N.W.2d 174.

¶18 Here, Hughes does not allege that the circuit court failed to
reasonably apply the Sullivan test to the facts of record in its pretrial ruling. He
further acknowledges that Frausto’s and Miles’ testimony about the aborted
burglary/robberies in Appleton and Winnebago County and the completed
burglary/robbery in Dane County “at least arguably” demonstrated a similarity to
the burglary of Parker’s home in this case. Hughes argues, however, that
Frausto’s testimony about other offenses listed on Exhibit 24 and Theyerl’s
testimony about crimes being investigated in the Fox Valley area “was extremely
general in nature and did not tend to show anything but that Hughes was a serial
property offender.” We disagree.

¶19 The testimony of both Frausto and Theyerl described specific
similarities between the current offenses and all of the Fox Valley burglaries
Theyerl had been investigating to which Frausto admitted involvement. In
particular, both men testified that all of the burglaries targeted the homes of
business owners likely to have substantial amounts of cash on hand, and did not
involve the theft of commonly stolen items such as jewelry or electronics. Frausto
provided additional details about how he, Hughes and Miles planned the robberies
in advance and executed them while armed and wearing masks and gloves. This
was classic modus operandi evidence that was highly probative of Hughes’
identity as one of the two masked intruders in Parker’s house. In addition,
testimony about the entire investigation and the aborted Winnebago County
burglary provided context to explain how the police eventually linked Hughes to
the Parker home invasion. As the circuit court noted, the danger of unfair
prejudice was limited because property crimes do not typically “invoke the kind of

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No. 2020AP344-CR

sympathies or horror” that often accompany a homicide or sexual assault crime.
We conclude the court did not erroneously exercise its discretion in admitting any
of the other acts evidence.

2. 9-1-1 Call

¶20 Hughes next contends the 9-1-1 call should have been excluded as
hearsay. Hearsay is defined as an out-of-court statement—that is, an oral or
written assertion or nonverbal conduct intended as an assertion—offered in
evidence “to prove the truth of the matter asserted,” other than a prior inconsistent
statement by a witness or an admission by a party opponent. WIS. STAT. § 908.01.
Hearsay is generally not admissible unless it falls within one of the statutory
exceptions set forth in WIS. STAT. ch. 908. WIS. STAT. § 908.02. Moreover, even
statements that would otherwise fall within exceptions to the hearsay rule may
need to be excluded pursuant to the Confrontation Clause of the Sixth Amendment
if they were testimonial in nature. Crawford v. Washington, 541 U.S. 36, 67-68
(2004) (testimonial statements from absent witnesses can be admitted only when
witness is unavailable and defendant had prior opportunity to cross-examine,
regardless of other indicia of reliability). A statement is testimonial in nature
when “a reasonable person in the position of the declarant would objectively
foresee that [the] statement might be used in the investigation or prosecution of a
crime.” State v. Jensen, 2007 WI 26, ¶25, 299 Wis. 2d 267, 727 N.W.2d 518
(citation omitted), superseded on other grounds by Giles v. California, 554 U.S.
353, 360-65 (2008) (addressing forfeiture by wrongdoing).

¶21 The State argues that the 9-1-1 call was admissible as an excited
utterance under WIS. STAT. § 908.03(2), or as “a statement of recent perception
under … § 908.03(1).” The latter contention conflates the exceptions for a present

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No. 2020AP344-CR

sense impression under § 908.03(1) and a statement of recent perception under
WIS. STAT. § 908.045(2). Because the circuit court admitted the 9-1-1 call under
the excited utterance and present sense impression exceptions, we need not
address whether the call might also have been admitted as a statement of recent
perception.

¶22 A statement is admissible as an excited utterance, regardless of the
availability of the declarant, if it relates to a startling occurrence and was made
while the defendant was under the stress of excitement caused by the event.
WIS. STAT. § 908.03(2); see also State v. Huntington, 216 Wis. 2d 671, 681-82,
575 N.W.2d 268 (1998) (spontaneity and stress endow statements with sufficient
trustworthiness to be admissible). A statement is admissible as a “present sense
impression,” regardless of the availability of the declarant, when it “describe[s] or
explain[s] an event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter.” Sec. 908.03(1); see also State v. Ballos,
230 Wis. 2d 495, 505, 602 N.W.2d 117 (Ct. App. 1999) (statements made in 9-1-1
calls by witnesses to a fire qualified as both present sense impressions and excited
utterances).

¶23 Hughes acknowledges that Parker’s initial comments about his
injuries and needing help “might be” excited utterances. He contends that
Parker’s additional statements identifying the type of firearm with which he had
been shot and the race and size of the perpetrators do not qualify for the excited
utterance exception because they were made “at the instigation of a law
enforcement dispatcher” and “in anticipation of further litigation.” However,
unlike statements of recent impression admissible pursuant to WIS. STAT.
§ 908.045(2), there is no statutory requirement that excited utterances cannot be
made in response to the “instigation” of an investigator or in anticipation of

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litigation. Forcing entry into Parker’s home, holding Parker on the ground with
his head covered while demanding the location of a safe or money, and shooting
Parker were all startling occurrences. Statements in the immediate aftermath of
those events describing the gun used and the race and size of the home invaders
directly relate to those startling occurrences. Parker continued to be under the
stress of excitement caused by these events throughout the 9-1-1 call as he was
bleeding profusely and drifting in and out of consciousness. The fact that Parker
was still bleeding during the 9-1-1 call also shows that his statements describing
the gun used to shoot him and the race and size of the home invaders were made
“immediately [after]” he perceived them. We therefore conclude that all of
Parker’s statements on the 9-1-1 call qualified both as excited utterances and
present sense impressions.

¶24 We next consider whether Parker’s statements on the 9-1-1 call,
although qualifying as statutory exceptions to the hearsay rule, must nevertheless
be excluded on constitutional grounds. Hughes asserts that the admission of the
9-1-1 call violated his right to confront witnesses because the hearsay exception
for statements of recent perception is not “firmly rooted in constitutional
jurisprudence.” We once again emphasize that the circuit court did not admit the
9-1-1 call as a statement of recent perception; it admitted it as an excited utterance
and present sense impression.

¶25 Hughes also argues that Parker’s statements were testimonial in
nature because he made them “in anticipation of further litigation that would ensue
when the perpetrators were caught and charged.” Hughes asserts that Parker
would be an “interested party” to any criminal prosecution because it might result
in a restitution award. We do not agree that Parker’s statements on the 9-1-1 call
were made in anticipation of litigation. They were made in the context of

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obtaining help for potentially life threatening injuries. While the dispatcher might
have had a dual motivation in keeping Parker talking and obtaining investigatory
information, a reasonable person in Parker’s position would not be focused on a
potential subsequent trial while his life was in immediate danger. We conclude
there was no Confrontation Clause violation because the statements were not
testimonial in nature.

3. Ineffective Assistance of Counsel

¶26 Hughes contends that his trial counsel provided ineffective
assistance by failing to raise an objection to Theyerl’s testimony for lack of
personal knowledge and by failing to request jury instructions related to
accomplices and witnesses who have been granted concessions. Because the
circuit court denied Hughes’ postconviction motion without holding an evidentiary
hearing, we review the ineffective assistance claims in the context of determining
whether the facts alleged in the postconviction motion would, if true, establish
both that counsel provided deficient performance and that the defendant was
prejudiced by that performance. State v. Swinson, 2003 WI App 45, ¶58, 261
Wis. 2d 633, 660 N.W.2d 12. We need not address both elements of the
ineffective assistance test if the defendant fails to make a sufficient showing on
one of them. Id. Here, we conclude Hughes has failed to establish deficient
performance.

¶27 In order to demonstrate deficient performance, a defendant must
overcome a presumption that counsel’s actions fell within a wide range of
professional conduct. Strickland v. Washington, 466 U.S. 668, 689 (1984). Here,
the record shows that Hughes’ trial counsel objected to Theyerl’s testimony that he
believed more than one person was involved in the Winnebago County burglaries

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for “lack of foundation.” The circuit court overruled the objection, stating that
Theyerl could answer if he had an opinion “after his investigation.” The court’s
decision was supported by Theyerl’s testimony that he had been personally
involved in the investigation of the Winnebago County burglaries. It would be
reasonable for an attorney to assume that the court’s foundation ruling applied to
Theyerl’s entire line of testimony about what he learned during his investigation.
It was not deficient performance for Hughes’ trial counsel to fail to raise
additional foundation objections to each question Theyerl answered about the
investigation.

¶28 Finally, Hughes contends his trial counsel should have requested
jury instructions on testimony by accomplices and by witnesses who have been
granted concessions. We conclude neither instruction was warranted. Criminal
Jury Instruction 245 cautions the jury against relying upon the uncorroborated
testimony of an accomplice. WIS JI—CRIMINAL 245 (2000). Frausto’s testimony
was not uncorroborated, however. The 9-1-1 call corroborated that two men, one
black and one white, had broken into Parker’s home and shot him in the legs. A
bullet recovered from Parker’s house corroborated that Hughes had used a 9mm
gun. Miles corroborated that Hughes had participated with Frausto in a series of
robberies and burglaries. Theyerl corroborated that Frausto had been caught as a
result of the mirror broken off of the getaway car linked to Miles during the
aborted Winnebago County robbery. The snowmobile helmet recovered from
Frausto’s residence corroborated his testimony that he had struck Parker with a
snowmobile helmet. When an accomplice’s testimony is at least partially
corroborated, a standard witness credibility instruction is sufficient. Linse v.
State, 93 Wis. 2d 163, 168, 286 N.W.2d 554 (1980). Criminal Jury Instruction
246 cautions the jury about relying upon the testimony of a witness who has been

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offered concessions. WIS JI—CRIMINAL 246 (2000). Here, conversely, Frausto
did not receive anything in exchange for his testimony against Hughes.

¶29 In sum, the record conclusively demonstrates that counsel did not
perform deficiently by failing to request either jury instruction. Therefore, the
circuit court did not err in denying Hughes’ postconviction motion without a
hearing.

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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