State v. Jermichael J. Carroll

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.
August 1, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP1209-CR Cir. Ct. No. 2017CF2783

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JERMICHAEL J. CARROLL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JOSEPH R. WALL and GLENN H. YAMAHIRO, Judges.
Affirmed.

Before White, C.J., Donald, P.J., and Dugan, 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. 2022AP1209-CR

¶1 PER CURIAM. Jermichael J. Carroll appeals his judgment of
conviction for first-degree reckless homicide with the use of a dangerous weapon,
attempted armed robbery, and possession of a firearm by a felon. He also appeals
the order denying his postconviction motion.1 Carroll argues that there was
insufficient evidence to support his convictions, and that he was denied his right to
a speedy trial. He also argues that he is entitled to sentence modification on the
grounds that his sentence is unduly harsh or unconscionable. Upon review, we
reject Carroll’s arguments and affirm.

BACKGROUND

¶2 The charges against Carroll stem from an incident that occurred on
May 31, 2017. According to the criminal complaint, Dylan Steffen and his friend,
Z.P.D., were walking past a school parking lot in the area of South 2nd Street
around 1:00 a.m., when suddenly a man came out of the parking lot and
approached them. That man was holding a gun, and put Z.P.D. in a headlock. He
told Z.P.D. to empty his pockets. Z.P.D. was able to break free, however, and he
and Steffen began running away. Z.P.D. then heard a gunshot, and saw that
Steffen had fallen to the sidewalk. Z.P.D. realized that Steffen had been shot, and
called 911.

¶3 Z.P.D. provided a description of the shooter to police. He said that
the shooter was wearing a blue track suit with a hooded sweatshirt, had a medium
build, skin tone similar to milk chocolate, and was clean-shaven.

1
Carroll’s trial and sentencing were before the Honorable Joseph R. Wall; we refer to
him as the trial court. Carroll’s postconviction motion was before the Honorable Glenn H.
Yamahiro; we refer to him as the postconviction court. We further note that some of the pretrial
proceedings in this matter were before the Honorable Jeffrey Conen.

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No. 2022AP1209-CR

¶4 Steffen was transported to the hospital, where he died of a single
gunshot wound to his back. An RP Luger brand 9mm bullet casing was recovered
from the scene.

¶5 In the course of the investigation, police obtained video surveillance
footage from the school parking lot. The video showed a white car driving into
the lot shortly before the shooting, and then speeding away moments after the
shooting. Photos of the car were shown on the news, and police received a tip that
led to the car. Its owner was identified as Mark Riley Roberson.

¶6 Police interviewed Roberson. He said that his cousin, Carroll, had
been staying with him, and he allowed Carroll to use his car. 2 Roberson further
stated that Carroll had used his car on the evening of May 30, 2017, and that he
was wearing a blue track suit that night, which he wore “all the time.” Roberson
also said that Carroll was armed with a 9mm handgun. Roberson’s girlfriend, who
was at Roberson’s apartment that night, also told police that Carroll had been
wearing a blue track suit, and that she believed that he had a firearm in his
waistband.

¶7 Roberson stated that Carroll had returned to his apartment that night
well after midnight. He said that Carroll was “nervous and sweating” when he
returned, and told Roberson that he “had to strip somebody,” which Roberson
understood to mean he had robbed someone. Roberson also stated that Carroll’s
gun had “fresh marks” on the slide, consistent with having been recently fired.

2
Although Roberson referred to Carroll as his cousin, they apparently were not blood
relatives.

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No. 2022AP1209-CR

¶8 Additionally, Roberson identified the white car in the surveillance
video as his Chevrolet Impala. Police searched the car and discovered RP-brand
9mm ammunition, as well as ammunition for other types of guns.

¶9 Carroll was arrested ten days after the shooting; he was wearing a
blue track suit at the time of his arrest. Z.P.D. identified him in a live lineup.

¶10 A jury trial was scheduled for January 2018. However, Carroll
requested an adjournment to investigate a potential jailhouse informant. The trial
was rescheduled for April 2018.

¶11 On the morning the trial was scheduled to begin, the State requested
an adjournment because Roberson, who the State intended to call as a witness,
could not be located. Roberson was subsequently arrested on a material witness
warrant, and agreed to appear at Carroll’s trial. The trial was rescheduled for
September 2018.

¶12 At the September trial date, Roberson did not appear, and the State
again requested an adjournment. The trial was rescheduled for January 2019.

¶13 Additionally, shortly after that adjourned September trial date,
Carroll submitted a pro se motion for a speedy trial, pursuant to WIS. STAT.
§ 971.10 (2017-18).3 A hearing was held on October 15, 2018, to address that
motion, at which time Carroll’s counsel made an oral request for a speedy trial on
Carroll’s behalf. Since Carroll was represented, the parties agreed to calculate the
speedy trial deadline date from October 15, rather than from the date that Carroll

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2022AP1209-CR

had filed his pro se motion. The rescheduled trial date for January 2019 fell
within the ninety-day statutory guideline. See § 971.10(2)(a).

¶14 On the day of the trial set for January 2019, the State had to request
another adjournment because Roberson again did not appear. Carroll’s bond was
converted to a personal recognizance bond and he was released, pursuant to the
statutory requirements. See WIS. STAT. § 971.10(4).

¶15 The trial was rescheduled for May 2019; however, it was the third
trial scheduled for that particular day. Carroll declined the possibility of being
spun to another court. The trial was again rescheduled, to July 2019. However,
on that trial date, Carroll informed his counsel that he wanted a notice of alibi filed
and an alibi witness produced. Once again, the trial was rescheduled, to
November 2019, at which time all parties were ready to proceed.

¶16 Z.P.D. testified regarding the robbery attempt and shooting. During
cross-examination, counsel for Carroll focused particularly on the inconsistencies
in Z.P.D.’s description of the shooter shortly after the incident as compared to
Carroll’s characteristics. For example, Z.P.D. had told police the shooter had a
medium build, but counsel elicited testimony from Z.P.D. that Carroll had a large,
muscular build. Z.P.D. had also reported that the shooter was clean-shaven;
however, a picture taken of Carroll when he was arrested twelve days after the
shooting showed he had a full beard. Counsel also pointed out that Carroll’s skin
tone was not the same color as a Hershey milk chocolate bar. Additionally, Z.P.D.
had described the shooter as wearing a blue hooded sweatshirt, but the sweatshirt
Carroll was wearing when he was arrested had no hood.

¶17 Roberson also testified. He stated that Carroll was wearing a blue
track suit the day of the shooting. He also stated that he had let Carroll borrow his

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No. 2022AP1209-CR

white Impala on the night of the shooting, and that he saw Carroll with his 9mm
gun “in his hand” when Carroll returned later that night. Roberson further testified
that Carroll had told him he had “stripped,” or robbed, somebody while he was
gone.

¶18 Roberson’s girlfriend, Porsha Frazier, also testified at trial.
Although she stated that she did not remember anything from that night, the State,
for purposes of impeachment, introduced evidence that Frazier had told police that
Carroll was wearing a blue track suit when he left Roberson’s apartment that
night, that he had taken Roberson’s white Impala, and that she could tell that he
had a firearm in his waistband.

¶19 Additionally, the jury saw the surveillance video from the school
showing the white vehicle entering the parking lot just prior to the shooting, and
then leaving the parking lot at a higher rate of speed. The jury also heard evidence
regarding the 9mm bullet casing found at the scene of the shooting, and the 9mm
ammunition recovered from Roberson’s vehicle.

¶20 The jury found Carroll guilty of all three charges: first-degree
reckless homicide with the use of a dangerous weapon, attempted armed robbery,
and possession of a firearm by a felon. The trial court imposed consecutive
sentences totaling seventy years of imprisonment.

¶21 Carroll filed a postconviction motion seeking to vacate his
convictions or, in the alternative, to modify his sentences. He argued that there
was insufficient evidence to establish that he was the shooter; that his right to a
speedy trial was violated; and that his sentences were unduly harsh and excessive.

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No. 2022AP1209-CR

¶22 The trial court rejected Carroll’s arguments. With regard to the
insufficient evidence claim, it noted that the State’s evidence was reviewed by the
trial court both after the close of evidence and after the verdicts were rendered,
and found to be sufficient to support the guilty verdicts. Regarding the speedy
trial claim, the trial court noted that Carroll also had requested adjournments along
with the State, and further, that Carroll was in custody for part of that time for an
unrelated conviction, and therefore was not prejudiced.

¶23 Finally, with regard to Carroll’s sentence, the trial court found that it
was based on proper factors, and the basis for imposing consecutive sentences was
thoroughly explained. Therefore, the court denied Carroll’s postconviction
motion. This appeal follows.

DISCUSSION

Sufficiency of the Evidence

¶24 We first review Carroll’s claim that there was insufficient evidence
to establish him as the perpetrator of these crimes. When reviewing the
sufficiency of the evidence, this court “may not substitute its judgment for that of
the trier of fact unless the evidence, viewed most favorably to the [S]tate and the
conviction, is so lacking in probative value and force that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt.” State v.
Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).

¶25 Furthermore, our review of the trier of fact’s findings is “highly
deferential.” State v. Rowan, 2012 WI 60, ¶5, 341 Wis. 2d 281, 814 N.W.2d 854.
In fact, “[i]f any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite

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No. 2022AP1209-CR

guilt,” this court “may not overturn a verdict even if it believes that the trier of fact
should not have found guilt based on the evidence before it.” Poellinger, 153
Wis. 2d at 507. Whether the evidence in a case is sufficient to sustain a guilty
verdict is a question of law that we review de novo. State v. Smith, 2012 WI 91,
¶24, 342 Wis. 2d 710, 817 N.W.2d 410.

¶26 Carroll’s arguments relating to this issue, as well as being argued at
trial, are that Carroll was misidentified as the perpetrator.4 As such, he focuses on
the inconsistencies between Z.B.D.’s description of the suspect provided shortly
after the shooting, and Carroll’s actual physical characteristics. Carroll further
notes that his track suit jacket did not have a hood, as described by Z.B.D. These
identification issues were all raised and discussed by Carroll’s counsel during
cross-examination, such that the jury heard about these inconsistencies during this
testimony. They were further reiterated by counsel during closing arguments.

¶27 Additionally, the jury was provided an instruction relating to the
identification of Carroll as the perpetrator, which states, in part:

The identification of the defendant is an issue in this case
and you should give it your careful attention. You should
consider the reliability of any identification made by a
witness, whether made in or out of court. You should
consider the credibility of a witness making an
identification of the defendant in the same way you
consider credibility of any other witness.

4
In support of this argument, Carroll cites State v. McMorris, 213 Wis. 2d 156, 160, 570
N.W.2d 384 (1997), in which our supreme court reviewed the admissibility of an eyewitness’s in-
court identification of the defendant after an identification in a lineup that violated the
defendant’s Sixth Amendment right to counsel. Id. We disagree with Carroll that the discussion
in McMorris is applicable here, as it revolved around whether the in-court identification had a
sufficient “independent origin” from the lineup that was determined to have violated the
defendant’s rights. Id. at 178. Here, the lineup in which Z.B.D. identified Carroll was not
challenged.

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No. 2022AP1209-CR

WIS JI—CRIMINAL 141.

¶28 “It is the function of the trier of fact, and not of an appellate court, to
fairly resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Poellinger, 153 Wis. 2d
at 506. Indeed, the “rule in Wisconsin” is that the jury is the “ultimate arbiter of
credibility,” see O’Connell v. Schrader, 145 Wis. 2d 554, 557, 427 N.W.2d 152
(Ct. App. 1988), and “[w]here there are inconsistencies within a witness’s
testimony or between witnesses’ testimonies, the jury determines the credibility of
each witness and the weight of the evidence,” see State v. Sharp, 180 Wis. 2d 640,
659, 511 N.W.2d 316 (Ct. App. 1993).

¶29 We conclude that the evidence presented by the State—including
Z.B.D.’s testimony of the incident and identification of Carroll in the live lineup;
the video surveillance of the white vehicle at the scene; the 9mm bullet casing
recovered from the scene; and the testimony of Roberson and Frazier linking
Carroll to the blue track suit, the white Impala, and a 9mm gun—was sufficient for
the jury, after weighing that evidence and assessing credibility, to convict Carroll.
See Poellinger, 153 Wis. 2d at 506. We therefore will not disturb the jury’s
verdict. See id. at 507.

Speedy Trial Rights

¶30 Next, we review Carroll’s claim that his speedy trial rights were
violated. There is both a constitutional and a statutory right to a speedy trial.
With regard to the statutory right to a speedy trial, WIS. STAT. § 971.10(2)(a)
provides that “[t]he trial of a defendant charged with a felony shall commence
within 90 days from the date trial is demanded[.]” If the trial does not occur in
accordance with this required time frame, the remedy is that the defendant is

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No. 2022AP1209-CR

“discharged from custody[.]” See § 971.10(4). That occurred in this case; when
the State had to request an adjournment in January 2019 after Carroll’s speedy
trial request made in October 2018, his bail was converted to a personal
recognizance bond and he was released. See id. Therefore, the trial court
complied with the statutory requirements for a speedy trial.5 See State v. Bodoh,
226 Wis. 2d 718, 724, 595 N.W.2d 330 (1999) (“Statutory interpretation and
applying a statute to a set of facts are both questions of law which this court
reviews de novo.”).

¶31 With regard to the constitutional right to a speedy trial, “[b]oth the
Sixth Amendment to the United States Constitution and article I, section 7 of the
Wisconsin Constitution guarantee an accused the right to a speedy trial.” State v.
Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 704 N.W.2d 324. Whether a
defendant has been denied his constitutional right to a speedy trial is a question of
law that we review de novo. See id., ¶10. However, the findings of fact made by
the trial court will be upheld unless they are clearly erroneous. Id.

¶32 To make the determination of whether the right to a speedy trial has
been violated, courts use a “four-part balancing test” established in Barker v.
Wingo, 407 U.S. 514 (1972). See Urdahl, 286 Wis. 2d 476, ¶11. This test
“weighs the conduct of the prosecution and the defense and balances the right to
bring the defendant to justice against the defendant’s right to have that done
speedily.” Id. However, the right to a speedy trial “is not subject to bright-line

5
Carroll argues that the trial court failed to comply with the statutory requirements for a
speedy trial request after the State requested an adjournment in April 2018. However, as noted
above, Carroll did not make his speedy trial request until October 2018, and in a felony case, the
statutory time frame does not commence until that demand is made. See WIS. STAT.
§ 971.10(2)(a).

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No. 2022AP1209-CR

determinations and must be considered based on the totality of circumstances that
exist in the specific case.” Id.

¶33 The first Barker factor is “the length of delay,” which is also the
“triggering mechanism used to determine whether the delay is presumptively
prejudicial.” Urdahl, 286 Wis. 2d 476, ¶12. “Generally, a post-accusation delay
approaching one year is considered to be presumptively prejudicial.” Id. Here,
the post-accusation delay was over two years. We therefore review the other three
Barker factors, which are: the reasons for the delay; whether the defendant
asserted the right to a speedy trial; and whether the delay prejudiced the defendant.
See State v. Provost, 2020 WI App 21, ¶¶26-27, 392 Wis. 2d 262, 944 N.W.2d 23.

¶34 The second and third Barker factors—the reasons for the delay and
the assertion of the right—we review in tandem, as they are interrelated for
purposes of this discussion. To begin with, Carroll did not assert his speedy trial
rights until October 2018, when more than a year had already passed since he had
been charged. Although a defendant does not waive the right to a speedy trial by
failing to assert it, “the defendant’s assertion of or failure to assert his right to a
speedy trial is one of the factors to be considered in an inquiry into the deprivation
of the right.” Barker, 407 U.S. at 528.

¶35 In this case, there were numerous adjournments that required the
trial to be rescheduled, both before and after Carroll asserted his speedy trial
rights, with several of the adjournments requested by Carroll. Furthermore, when
Carroll did assert his right and the State had to adjourn the following trial date, he
was released on a personal recognizance bond, in accordance with the speedy trial
statute. See WIS. STAT. § 971.10(4). We therefore conclude that neither of these
factors weigh in favor of finding a violation of Carroll’s speedy trial rights.

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No. 2022AP1209-CR

¶36 Turning to the fourth factor, determining whether Carroll was
prejudiced by these delays, we consider the “three interests that the right to a
speedy trial protects: prevention of oppressive pretrial incarceration, prevention of
anxiety and concern by the accused, and prevention of impairment of defense.”
See Urdahl, 286 Wis. 2d 476, ¶34. In his argument on this issue, Carroll does not
assert any specific allegations relating to these considerations, other than stating
that the delay between charging and trial was excessive. While “affirmative proof
of particularized prejudice is not essential to every speedy trial claim,” in
reviewing this issue, “presumptive prejudice” based on a delay of over one year
“cannot alone carry a Sixth Amendment claim without regard to the other Barker
criteria,” including the prejudice factor. Doggett v. United States, 505 U.S. 647,
655-56 (1992). Carroll fails to provide any explanation of how the delay in this
case impacted him relative the three interests relating to prejudice set forth in
Urdahl.

¶37 Furthermore, the trial court made a factual finding that Carroll was
incarcerated on an unrelated case prior to his trial in this matter, due to a
revocation hold and then serving the sentence after his extended supervision in
that unrelated matter was ultimately revoked. This finding, supported by the
record, weighs against the interest regarding “oppressive pretrial incarceration,”
since Carroll’s incarceration was for an unrelated case. See Urdahl, 286 Wis. 2d
476, ¶34.

¶38 In sum, after weighing the Barker factors as they relate to the
totality of the circumstances in this case, we conclude that Carroll’s constitutional
rights to a speedy trial, were not violated. See id., ¶11. Therefore, because neither
Carroll’s statutory nor constitutional rights to a speedy trial were violated, his
claim fails.

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No. 2022AP1209-CR

Sentence Modification

¶39 Finally, we turn to Carroll’s claim that he is entitled to sentence
modification because his sentence was unduly harsh or unconscionable. The trial
court has “the ‘inherent power’ to modify a previously imposed sentence after the
sentence has commenced” if it “concludes its original sentence was ‘unduly harsh
or unconscionable[.]’” State v. Grindemann, 2002 WI App 106, ¶21, 255 Wis. 2d
632, 648 N.W.2d 507 (citations omitted). We review the determination regarding
whether a sentence was unduly harsh or unconscionable for an erroneous exercise
of discretion. Id., ¶30.

¶40 A sentence will be considered unduly harsh or unconscionable “only
where the sentence is so excessive and unusual and so disproportionate to the
offense committed as to shock public sentiment and violate the judgment of
reasonable people concerning what is right and proper under the circumstances.”
Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). On the other
hand, “[a] sentence well within the limits of the maximum sentence is unlikely to
be unduly harsh or unconscionable.” State v. Scaccio, 2000 WI App 265, ¶18,
240 Wis. 2d 95, 622 N.W.2d 449.

¶41 As previously noted, Carroll’s total sentence for the three counts was
seventy years, divided as follows: for the count of first-degree reckless homicide
with the use of a dangerous weapon, thirty years of initial confinement followed
by fifteen years of extended supervision; for the attempted armed robbery count,
ten years of initial confinement followed by five years of extended supervision;
and for the possession of a firearm by a felon count, five years of initial
confinement followed by five years of extended supervision. Also, as stated
above, the sentences were imposed to run consecutively.

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No. 2022AP1209-CR

¶42 In its review of Carroll’s postconviction motion, the postconviction
court rejected his claim that his sentence was unduly harsh or unconscionable.
The court found that the trial court had considered the proper sentencing factors,
which were accompanied by a “detailed explanation” of the trial court’s basis for
the sentence imposed, including its review of the maximum sentences allowed for
each count, and its reason for imposing consecutive sentences.

¶43 The sentences imposed in this matter were all within the statutory
limits. See WIS. STAT. §§ 940.02(1); 939.63(1)(b); 939.50(3)(b)-(c), (g);
943.32(2); 939.32(1g); 941.29(1m)(a). Furthermore, we agree with the
postconviction court’s finding that the proper legal standards for sentencing were
applied, based on our review of the sentencing transcript which contained a very
thorough discussion of the sentencing objectives and factors considered by the
trial court. See State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d
197. Therefore, the postconviction court’s rejection of Carroll’s sentence
modification claim was not an erroneous exercise of discretion. See Grindemann,
255 Wis. 2d 632, ¶30.

¶44 Accordingly, as we have rejected all of Carroll’s claims, we affirm
his judgment of conviction and the order denying his postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

14