State v. Curtis Von Brown

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 22, 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. 2019AP1077-CR Cir. Ct. No. 2016CF3247

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CURTIS VON BROWN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS, Judge. Affirmed.

Before Brash, P.J., Blanchard and Dugan, 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. 2019AP1077-CR

¶1 PER CURIAM. Curtis Von Brown appeals a judgment convicting
him of one count of first-degree reckless homicide with use of a dangerous weapon,
as a party to a crime, and one count of unlawfully possessing a firearm as a convicted
felon. Brown also appeals an order denying his postconviction motion. Brown
argues that: (1) his trial counsel ineffectively represented him by failing to call his
cousin Robert Farrow as a witness at trial; (2) his trial counsel ineffectively
represented him by failing to fully investigate and adequately argue to the jury
potential inconsistencies in video evidence; and (3) the circuit court’s findings of
fact during the postconviction motion hearing were clearly erroneous. Upon review,
we affirm.

¶2 Jovanni Sims was shot to death outside Elim’s Lounge in Milwaukee
on July 18, 2016. After a trial, the jury found Brown guilty of the charges against
him. Brown moved for postconviction relief, arguing that he received ineffective
assistance of trial counsel. The circuit court denied the motion after an evidentiary
hearing.

¶3 To prove a claim of ineffective assistance of counsel, a defendant must
show that his or her counsel 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

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dispose of a claim of ineffective assistance of counsel on either ground. Strickland,
466 U.S. at 697.

¶4 Brown first argues that his trial counsel, Attorney Patrick Flanagan,
ineffectively represented him by failing to call Farrow as a defense witness at trial.
Brown contends that Farrow, who was with him at Elim’s Lounge on the evening
of the shooting, would have testified that he did not see Brown shoot Sims.

¶5 Attorney Flanagan testified at the evidentiary hearing that he decided
not to call Farrow because Farrow’s testimony was not consistent with Brown’s
theory of the defense—that Brown was not at Elim’s Lounge the evening Sims was
shot. Attorney Flanagan explained that Brown did not want him to concede that
Brown was present at the scene when Sims was killed, but instead wanted to make
the State prove that fact to the jury. Attorney Flanagan also testified that he decided
not to call Farrow as a witness because he concluded that Farrow’s testimony would
have assisted the State in proving that Brown had a motive to kill Sims because
Farrow was on the record as having said that all of the following occurred, leading
up to the time Sims was shot: Brown and Sims were arguing at Elim’s Lounge,
Farrow tried to break up the fight between Brown and Sims, and Brown continued
arguing with Sims.

¶6 In addition to these problems with Farrow’s testimony, Attorney
Flanagan testified that he concluded that Farrow’s credibility could be attacked for
two reasons. First, Farrow was Brown’s cousin and, therefore, could have been
perceived as biased. Second, Farrow had eight to ten prior convictions in
Wisconsin, which might lead the jury to discount his credibility. Attorney Flanagan
testified that he and Brown “made the strategic choice that we weren't going to call
somebody who was going to put [Brown] outside fighting and arguing with [Sims]

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No. 2019AP1077-CR

right before the shots rang out,” especially because Farrow’s testimony was of
limited value to Brown in that Farrow did not see who actually shot Sims.

¶7 Attorney Flanagan’s postconviction hearing testimony shows that he
made a reasonable strategic decision not to call Farrow. “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland, 466 U.S. at 690. Brown has failed to
overcome the presumption that Attorney Flanagan’s decision not to call Farrow was
not a reasonable exercise of professional judgment. See id. Therefore, Flanagan
did not perform deficiently by choosing not to call Farrow as a witness.

¶8 Brown next argues that Attorney Flanagan provided him with
constitutionally ineffective assistance by failing to fully investigate and adequately
argue to the jury potential inconsistencies in video evidence with regard to the color
of the shoes the shooter was wearing. Video was presented at trial from inside and
outside Elim’s Lounge and from the Milwaukee Women’s Correctional Center,
which was across the street from Elim’s Lounge. Brown does not specify which
video he is referring to in his appellate brief and does not indicate the portion of the
videos to which he refers. He also provides no specific citations to the record.
Therefore, we will not address this argument. See State v. Pettit, 171 Wis. 2d 627,
647, 492 N.W.2d 633 (Ct. App. 1992) (we may decline to review issues that are
inadequately briefed).

¶9 Finally, Brown argues that the circuit court’s findings of fact from the
postconviction motion hearing were clearly erroneous. These arguments are
meritless. First, Brown contends that the circuit court erroneously found that
Farrow’s position that he did not see the “actual killer” fire his weapon rendered the
rest of Farrow’s testimony incredible. Brown’s assertion misstates the circuit

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No. 2019AP1077-CR

court’s factual finding. The circuit court did not say that Farrow’s testimony was
incredible. The circuit court said that it was “somewhat concerning” that Farrow’s
statements to the defense investigator were “somewhat inconsistent,” but “not
enormously inconsistent” with Farrow’s testimony at the evidentiary hearing.

¶10 Second, Brown contends that the circuit court erroneously found that
Brown cannot show prejudice because Farrow did not contact the police in Missouri,
where Farrow was living when he became aware that Brown had been arrested for
the homicide. Again, Brown misstates the circuit court’s ruling. Moreover, this is
a legal conclusion, not a finding of fact.

¶11 Third, Brown contends that the circuit court erroneously found that
Attorney Flanagan reasonably decided not to call Farrow solely due to Farrow’s
extensive criminal record. Once again, the circuit court made no such finding. The
circuit court simply noted, when recounting Attorney Flanagan’s reasons for not
calling Farrow as a witness, that “Mr. Flanagan was also aware that Mr. Farrow …
had a long record in Wisconsin, about 10 to 12 convictions, [and] that he may have
had convictions in another state.”

¶12 Fourth, Brown argues that the circuit court “erroneously applied the
standard for deficient performance.” This argument conflates the standards of
review for factual findings and legal conclusions. It does not warrant additional
discussion.

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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