State v. Michael W. Cina

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.
May 18, 2022
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. 2021AP525-CR Cir. Ct. No. 2017CF47

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL W. CINA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County:
BRUCE E. SCHROEDER, Judge. Affirmed.

Before Gundrum, P.J., Grogan and Kornblum, 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. 2021AP525-CR

¶1 PER CURIAM. Michael W. Cina appeals a judgment of conviction
for first-degree intentional homicide by use of a dangerous weapon. 1 Cina argues
the circuit court erroneously denied his request for lesser-included instructions of
felony murder and first- and second-degree reckless homicide. We conclude the
evidence did not reasonably support those instructions. Accordingly, we affirm.

BACKGROUND

¶2 On the morning of August 21, 2016, Anita, Bernard Reavers’s
upstairs neighbor, asked to borrow his vacuum.2 While at Anita’s apartment,
Reavers heard a noise in the kitchen. Reavers went to investigate, and Anita heard
him say “Hey, man.” She heard a gunshot and found Reavers lying on the kitchen
floor, bleeding from a head wound. She was able to briefly glimpse a person
running down the steps outside her kitchen. Anita testified that only a few
seconds elapsed between the time Reavers left for the kitchen and the gunshot.

¶3 Cina’s case proceeded to trial, at which it is undisputed the State
presented overwhelming evidence that Cina was the shooter. Among other things,
a glove left in the kitchen had DNA that matched Cina’s, to a one-in-five-trillion
certainty. The tread on a pair of Puma tennis shoes at Cina’s residence matched
bloody footprints left at the scene, and a bag full of commonly used burglary tools
was found in Cina’s basement. Cina also confessed to two friends that he had shot
Reavers while attempting a robbery.

1
Cina was also convicted of burglary and possession of a firearm by a felon. He does
not challenge his convictions on those counts, and we therefore do not further discuss them.
2
We use a pseudonym for victims other than the deceased, pursuant to the policy
underlying WIS. STAT. RULE 809.86 (2019-20). All references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise noted.

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No. 2021AP525-CR

¶4 Cina did not testify at trial and presented no defense witnesses. His
closing argument was that the State had not demonstrated Cina was the burglar or
the shooter. He requested that the circuit court instruct the jury on several lesser-
included offenses of first-degree intentional homicide: felony murder and first-
and second-degree reckless homicide. The circuit court declined, reasoning that if
the jury believed Cina was the shooter, the evidence gave rise to no other
inference than that the shooting had been intentional. Conversely, if the jury
concluded the State failed to establish Cina was the shooter, it would have to
acquit him. The jury found Cina had committed the homicide, and the court
sentenced him to lifetime imprisonment. He now appeals, asserting the failure to
give the lesser-included instructions was error.

DISCUSSION

¶5 A circuit court has broad discretion to determine what instructions
are given to a jury. State v. Wilson, 149 Wis. 2d 878, 898, 440 N.W.2d 534
(1989). In general, we will affirm if the instructions fully and fairly informed the
jury of the rules of law applicable to the case and assisted the jury in making a
reasonable analysis of the evidence. State v. Johnson, 2021 WI 61, ¶16, 397
Wis. 2d 633, 961 N.W.2d 18. A circuit court’s discretion is more limited when it
comes to determining whether the evidence warrants an instruction on a lesser-
included offense. Id. We review that issue de novo. Id.

¶6 The first step in the analysis is to determine whether the crime for
which an instruction was requested is, in fact, a lesser-included offense of the
crime charged. State v. Jones, 228 Wis. 2d 593, 598, 598 N.W.2d 259 (Ct. App.
1999). Here, the State agrees with Cina that felony murder, see WIS. STAT.
§ 940.03, and first- and second-degree reckless homicide, see WIS. STAT.

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No. 2021AP525-CR

§§ 940.02 and 940.06, are all lesser-included offenses of first-degree intentional
homicide under WIS. STAT. § 939.66(2).

¶7 The parties differ on the second step of the analysis, which requires a
determination of whether the requested instruction is grounded in evidence before
the trier of fact. See Jones, 228 Wis. 2d at 598. “It is error for a court to refuse to
instruct on an issue which is raised by the evidence or to give an instruction on an
issue which finds no support in the evidence.” Wilson, 149 Wis. 2d at 898. A
requested lesser-included instruction should be provided “if there are reasonable
grounds in the evidence both for acquittal on the greater charge and conviction on
the lesser offense.” Johnson, 397 Wis. 2d 633, ¶27. In making this
determination, the evidence is viewed in the light most favorable to the defendant.
Id., ¶18.

¶8 Cina argues the lesser-included instructions were appropriate
because there was no evidence he had any dispute with or anger toward the victim
and there were no witnesses at trial who saw the actual shooting. He posits that
while one reasonable view of the evidence is that he shot with intent to kill,3 “there
are other possibilities as well.” For example, Cina suggests there may have been a
struggle, Reavers may have tried to grab his gun, or Cina might have shot the gun
accidentally.

¶9 In response, the State marshals the considerable evidence at trial
demonstrating intent to kill, including his comments to others and the fact that

3
Cina appears to discount the notion that he could form the intent to kill nearly
simultaneously with the act of shooting, yet it is black-letter law that there may be no appreciable
space of time between the formation of the intent to kill and the act of killing. See Muller v.
State, 94 Wis. 2d 450, 469, 289 N.W.2d 570 (1980).

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No. 2021AP525-CR

Cina went armed to a residence during morning hours on a weekend, when people
were likely to be home. The State dismisses Cina’s arguments regarding
alternative scenarios, noting there was no evidence to suggest a struggle or
accident. The State’s crime scene expert testified that based on the location of the
spent cartridge, the wound points on Reavers’s head and the blood splatter pattern,
Reavers was likely standing near a stove in the kitchen and the shooter was
standing either just inside or just outside the door to a deck several feet away. The
expert’s opinion was that Reavers “was probably turning away at the time he was
shot.”

¶10 Cina asserts the State’s response ignores evidence presented by both
its key eyewitness and its experts. Cina relies on Anita’s testimony that her keys,
a roll of tape that may have been Cina’s, and the glove with Cina’s DNA were
found on the kitchen floor after the homicide and she did not know how they got
there. Cina argues “[i]t is unlikely these items would have ended upon the floor
absent some sort of struggle.” To the contrary, there are countless other ways
these items could have been deposited in their respective locations. Cina’s
assertion that it was most likely a struggle is pure speculation, which does not
justify an instruction. “The evidence supporting submission of the lesser-included
offense [instruction] must be relevant and appreciable when viewed in a light most
favorable to the defendant.” State v. Fleming, 181 Wis. 2d 546, 560, 510 N.W.2d
837 (Ct. App. 1993).

¶11 To be sure, Cina attempted to create an evidentiary basis for the
lesser-included instructions at trial. He cross-examined one of the investigating
officers about the absence of bloody footprints near the items on the kitchen floor,
questioning clearly designed to suggest that those items were deposited on the
floor prior to the shooting. On recross, the State explicitly mentioned the notion of

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No. 2021AP525-CR

a “struggle,” posing a hypothetical about whether in such a scenario bloody
footprints would be expected to be found. It does not appear there was
development of the factual record regarding any evidence that would support the
notion of a struggle actually having taken place. As a result, the only evidentiary
basis for the lesser-included instructions Cina points to are a few items strewn on
the floor (two of which may have been used in the robbery) and the absence of
bloody footprints near them. As previously stated, this is not a reasonable
evidentiary basis for an acquittal on the intentional homicide charge and a
conviction for either felony murder or reckless homicide.

¶12 Cina also relies on the testimony by an investigating officer who
explicitly mentioned the possibility of a struggle. However, the testimony was
offered to disprove that a struggle had taken place. The officer testified that while
Reavers was in the hospital, he swabbed Reavers’s hands and fingernails for DNA.
When asked by the prosecutor why he did this, he responded, “Well, there is what
is called touch DNA, and in a case like this where it appeared maybe there was a
struggle, I was hoping during that struggle, Mr. Reavers would have secured some
of the suspect’s DNA on his fingers or underneath his fingernails.” The State
established at trial that there was, in fact, no DNA other than Reavers’s found on
his hands. The mere fact that one officer contemplated the possibility of a struggle
and attempted to preserve evidence to determine whether that happened does not
establish an evidentiary basis for the lesser-included instructions Cina desired.

¶13 Additionally, though unmentioned by Cina, we note that the glove
found at the scene contained two minor DNA profiles in addition to the major
profile belonging to Cina. These two minor profiles could not be used for
comparative purposes because there was too little DNA, and any inference that
one of those profiles was Reavers’s would be pure speculation. First, not even the

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No. 2021AP525-CR

gender of the minor contributors could be determined from the samples. Second,
the gloves’ whereabouts were not accounted for during the weeks prior to the
shooting, after the individual the gloves belonged to had left them in Cina’s
basement. As a result, there are any number of possibilities other than a struggle
for how the gloves could have come to contain the DNA of unspecified other
individuals.

¶14 Cina also relies on the testimony of the medical examiner, who was
asked whether she saw “any injuries that would be consistent with a struggle or
with self-defense-type wounds.” The examiner testified that Reavers had “hitting
abrasions, which are skin scrapes in the midline of the back of the head and on the
right cheek.” However, she could not testify when those injuries were sustained or
how they occurred. Again, this testimony was insufficient to warrant the lesser-
included instructions.

¶15 Cina additionally argues that his “purported statements to his
associates and wife,” while powerful evidence that he was the shooter, do not
demonstrate his intent to kill. The most significant of these statements for
purposes of the arguments presented here was Marco Dejesus’s testimony that
after the shooting, Cina told him the person he shot was “trying to be a hero.” We
agree with the State that Cina’s statements to others were highly inculpatory and,
to the extent they spoke to his intent at all, indeed suggested that Cina intended to
kill Reavers.

¶16 For the reasons explained in State v. Borrell, 167 Wis. 2d 749, 780-
81, 482 N.W.2d 883 (1992), opinion clarified on other grounds by State v. Greve,
2004 WI 69, 272 Wis. 2d 444, 681 N.W.2d 479, Cina’s statements to others were
insufficient to establish an evidentiary basis for the desired lesser-included

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No. 2021AP525-CR

instructions. Borrell discussed the specificity necessary for a defendant’s after-
the-fact exclamations to justify such instructions. None of the statements Cina
made to his associates or to his wife plausibly suggested that Cina lacked intent to
kill at the time of the offense.

By the Court.—Judgment affirmed.

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

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