State v. Dametrius A. Reeves

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.
April 30, 2026
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. 2025AP495-CR Cir. Ct. No. 2017CF1899

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAMETRIUS A. REEVES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: ELLEN K. BERZ, Judge. Affirmed.

Before Graham, P.J., Nashold, and Taylor, 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. 2025AP495-CR

¶1 PER CURIAM. Security camera footage captured the images of
two masked men as they shot and killed one man and severely injured another.
Police later identified one of the shooters as the defendant, Dametrius Reeves, and
the other as Reeves’s friend, Curtis Langlois. A jury found Reeves guilty of first-
degree intentional homicide, attempted first-degree intentional homicide, and
possessing a firearm as a felon. Reeves appeals his judgment of conviction and
the order denying his motion for postconviction relief.

¶2 On appeal, Reeves argues that he is entitled to a new trial because
his right to confront witnesses was violated when the prosecutor introduced
Langlois’s testimonial statements at trial; the circuit court excluded testimony
from an alibi witness that would have placed him away from the scene of the
shootings; the prosecutor made improper closing arguments; the court provided
the jury with an exhibit during deliberations that the jury did not request; and trial
counsel was ineffective by failing to object to some of the above errors and by
failing to present certain video evidence at trial that Reeves contends was
favorable to his defense. We conclude that any errors that were made at trial were
harmless, that Reeves’s trial counsel was not constitutionally ineffective, and that
Reeves is not entitled to a new trial in the interest of justice. We therefore reject
Reeves’s arguments and affirm.

BACKGROUND

¶3 The events that led to the shootings in question began at a bar on
Madison’s near south side one evening in August 2017. Reeves and Langlois
were at the bar with their girlfriends; also present were the victims, the decedent

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Kendrith Young and “A.B.”1 According to multiple witnesses who were present
at the bar that night, there was tension between the two groups.

¶4 There were security cameras inside the bar and in its parking lot, and
the cameras captured the following on video. Reeves, who drove a Chevy Malibu
to the bar that night, was wearing a distinctive black and white t-shirt with the
word “Hustle” on it, white jeans, black shoes with white soles, and a large
wristwatch. Around midnight, Young and A.B left the bar and exited the parking
lot in Young’s vehicle. Shortly thereafter, a vehicle that resembled Reeves’s
Malibu also exited the parking lot and appeared to be following Young’s vehicle.

¶5 Minutes later, Young and A.B. arrived at a nearby gas station, where
they were again captured on security footage. That footage depicts the following.

¶6 Young’s car pulled into the gas station, followed by a Malibu. As
Young and A.B. exited their car and entered the convenience store, the Malibu
traveled to the back of the store, outside of the range of the security cameras.
About a minute later, two men—one fully masked and one partially masked—
appeared in the frame, walking from the direction that the Malibu had been
traveling. The fully masked man, who had a similar skin tone and build as
Reeves, was wearing a black and white t-shirt with the word “Hustle” on it, black
shoes with white soles, and a large wristwatch. Unlike the surveillance images of
Reeves from the bar, the fully masked man depicted on the gas station surveillance
footage was wearing pants that were black rather than white.

1
We refer to the deceased homicide victim by his real name and the living attempted
homicide victim using initials that do not correspond to his real name. See WIS. STAT.
RULE 809.86 (2023-24). All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2025AP495-CR

¶7 The two masked men ran towards the entrance of the store and took
a position near the entrance, where they were concealed by a wall. Young exited
the store at 12:12 a.m. The masked men approached and fired shots at Young and
into the store at A.B. before fleeing the scene.

¶8 Within days, police identified Reeves and Langlois as suspects in the
shootings based on the security video footage. The State charged them with first-
degree intentional homicide of Young and attempted first-degree intentional
homicide of A.B., both by use of a dangerous weapon and as a party to a crime.
The State also charged them with possession of a firearm by a felon. Langlois
entered a guilty plea, leaving Reeves as the sole defendant who proceeded to trial.

¶9 The jury trial was held over several days in May 2019. We provide
a general overview of the evidence and arguments that were presented at trial in
this background section, and additional detail as needed in the discussion section.

¶10 At trial, the State argued that Reeves was the fully masked shooter
who had committed the crime with Langlois. The State introduced video footage
and still images from the security cameras at the bar and the gas station, as well as
some physical evidence and cell phone records that were consistent with Reeves’s
involvement in the shooting. The State also called a number of witnesses,
including A.B., the woman who had been Reeves’s girlfriend when the shootings
occurred, and a person who had been housed with Reeves in jail. A.B. testified
about the night of the shootings and identified Reeves and Langlois as the
shooters. Reeves’s former girlfriend and the jailhouse informant both testified
about conversations they had with Reeves following the shooting, in which Reeves
made a number of incriminating statements including confessing to killing Young.

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¶11 The State also called Langlois as a trial witness. Langlois declined
to take the oath and likewise declined to answer any of the prosecutor’s questions,
including questions about statements that Langlois had made to police. Reeves’s
trial counsel objected to any questions concerning Reeves on confrontation clause
grounds, but the circuit court initially allowed the questioning to continue. After
Langlois said nothing in response to the prosecutor’s questions about statements
Langlois had purportedly made to police about Reeves possessing a gun, trial
counsel renewed his objection, and the court determined that Langlois would not
be allowed to continue to testify. It then instructed the jury to disregard “any
statements that either counsel made regarding what Mr. Langlois may or may not
have said,” which “cannot be considered by you as evidence.”

¶12 Reeves testified at the trial, and his defense was that he was not
present at the gas station when the shootings occurred and that the masked man
depicted in the security footage with Langlois was someone else. Specifically,
Reeves testified that he had given Langlois permission to use his Malibu that night
and, prior to turning the Malibu over to Langlois, Reeves had taken his “Hustle”
t-shirt off and put it in the trunk of the car. Reeves further testified that he and a
friend, Roy Yoakum, had gotten together so that Reeves could sell Yoakum a
printer, and at the time the shootings occurred, Reeves and Yoakum were driving
around Madison’s near south side in Yoakum’s car. In sum, Reeves asked the jury
to infer that his Malibu was at the crime scene not because Reeves was there but
because he lent the Malibu to Langlois; that his cellphone pinged in the area near
the gas station before and after the shootings not because he was one of the
shooters but because he and Yoakum happened to be driving close by at that time;
and that the masked man pictured in the security footage was wearing his “Hustle”

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No. 2025AP495-CR

t-shirt not because that man was Reeves but because Reeves had left the shirt in
the car, making it available for the unidentified masked man to wear.

¶13 Reeves had intended to call Yoakum as an alibi witness who would
have supported this version of events. More specifically, in the pretrial notice that
Reeves filed pursuant to WIS. STAT. § 971.23(8), he represented that Yoakum
would testify that Yoakum picked Reeves up at an apartment that was near the bar
and drove Reeves to another location on the near south side that was close to the
gas station. However, the State moved to exclude Yoakum’s testimony on the
ground that Yoakum had violated the sequestration order that the circuit court had
put in place during the trial, and over Reeves’s objection, the court excluded
Yoakum’s testimony.

¶14 In closing arguments, the prosecutor alluded to Yoakum’s absence at
trial and to the lack of corroboration of Reeves’s version of events. The
prosecutor also made certain representations about the car that Langlois was
driving on the night of the shooting. Reeves’s trial counsel did not object to the
prosecutor’s comments, but Reeves takes issue with them on appeal.

¶15 During its deliberations, the jury asked to see some of the trial
exhibits, including video footage of the shootings from a specific angle. The
circuit court played the requested footage of the shootings for the jury, and also
played footage of the shootings from a different angle which the jury had not
specifically requested.

¶16 The jury found Reeves guilty on all counts. Following his
conviction, Reeves moved for a new trial on the bases of trial errors and
ineffective assistance of counsel, and also in the interest of justice. Following a

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No. 2025AP495-CR

Machner hearing,2 the circuit court denied Reeves’s motion in a thorough written
order. Reeves appeals.

DISCUSSION

¶17 On appeal, Reeves contends that there were errors made during the
course of the trial proceedings that warrant reversal; that his trial counsel was
constitutionally ineffective; and that he is entitled to a new trial in the interest of
justice. We address each of these issues in turn.

I. Trial Errors

¶18 Reeves alleges that there were four errors during the trial that
warrant a new trial: (1) the circuit court allowed Langlois’s out-of-court
statements to be introduced through the prosecutor’s questioning even though
Langlois was not available for cross-examination; (2) the court excluded testimony
from Yoakum that would have supported Reeves’s alibi; (3) the prosecutor made
comments during closing arguments that were improper; and (4) in response to the
jury’s request during deliberations to view one video exhibit, the court also offered
to play a video exhibit for the jury that it did not request. The State disputes that
any of this constitutes error and also contends that, to the extent that Reeves has
proven any error, the error was harmless. We evaluate the four alleged errors in
turn.

2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). A Machner
hearing is “[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s
testimony to explain [counsel’s] handling of the case.” State v. Balliette, 2011 WI 79, ¶31, 336
Wis. 2d 358, 805 N.W.2d 334.

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No. 2025AP495-CR

A. Langlois’s Statements and Reeves’s Confrontation Right

¶19 We begin with additional background about the prosecutor’s direct
examination of Langlois. As noted, Langlois remained silent throughout and
refused to answer any of the prosecutor’s questions. Reeves’s trial counsel
objected to any questioning about Reeves and asked the circuit court “to order the
State not to ask about Mr. Reeves.” Counsel argued that if the prosecutor was
allowed to ask about statements Langlois made to police that implicated Reeves,
the jury would be able to infer that Langlois made those statements and, given
Langlois’s refusal to testify, Reeves would have no meaningful opportunity to
cross-examine him. The court initially overruled the objection and declined to
give any such order.

¶20 When direct examination resumed, the prosecutor asked Langlois
two questions about statements that Langlois had purportedly made to police about
Reeves possessing a revolver. It is this exchange that Reeves takes issue with on
appeal:

Q. … Mr. Langlois, do you recall being interviewed by the
Wausau police …?

A. (No response.)

Q. Did you tell them that, “[Reeves] didn’t buy the gun. It
was someone else that bought it for him. Like I said, the
pistol had been around for a minute, man. The revolver
had been around. It was like that motherfucker had been
around.”

[Defense Counsel]: I’m gonna object. It’s hearsay.

THE COURT: Overruled.

….

Q. Do you recall telling the Wausau police that Mr. Reeves
had a revolver and it was a .38?

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No. 2025AP495-CR

[Defense Counsel]: I’m gonna object again. Can we
approach?

¶21 During a side bar outside of the presence of the jury, trial counsel
renewed his request that the prosecutor not be allowed to ask Langlois any
questions about Reeves. After reviewing case law and confirming that Langlois
did not intend to answer any questions posed by either attorney, the circuit court
determined that “no statements previously made by Mr. Langlois may be brought
in” pursuant to Crawford v. Washington, 541 U.S. 36 (2004), which addresses the
Sixth Amendment’s Confrontation Clause. See U.S. CONST. amend. VI. The
court then gave the following curative instruction:

Any statements that either counsel made regarding what
Mr. Langlois may or may not have said to other people, any
questions asked of Mr. Langlois that were not answered,
which means, of course, all of them, cannot -- are not and
cannot be considered by you as evidence. Moreover, you
cannot draw any inferences from those statements of
counsel or questions of counsel. Counsel’s statements,
counsel’s questions, are not evidence.

¶22 On appeal, Reeves argues that the introduction of Langlois’s out-of-
court statements violated his confrontation rights. The Confrontation Clause
guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right …
to be confronted with the witnesses against him.” U.S. CONST. amend. VI. The
general rule is that, with some exceptions that are not relevant here, the
Confrontation Clause is violated when a witness’s testimonial hearsay statements
are admitted into evidence against a defendant without the witness appearing for
cross-examination at trial.3 See Crawford, 541 U.S. at 53-54, 59 n.9; State v.

3
See Crawford v. Washington, 541 U.S. 36, 59 (2004) (“Testimonial statements of
witnesses absent from trial have been admitted only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine.”).

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No. 2025AP495-CR

Rockette, 2006 WI App 103, ¶20, 294 Wis. 2d 611, 718 N.W.2d 269. A witness
“appears” for cross-examination when the witness is present at trial, takes an oath
to testify truthfully, and answers questions asked by defense counsel. See
Rockette, 294 Wis. 2d 611, ¶24. Whether a defendant’s right to confrontation has
been violated is a question of constitutional fact; we will “adopt the circuit court’s
findings of historical fact, unless they are clearly erroneous, but we independently
apply those facts to the constitutional standard.” Id., ¶19 (citation omitted).

¶23 Here, Langlois’s statements were not admitted into evidence. As
mentioned, although the prosecutor asked questions alluding to Langlois’s prior
statements, the circuit court ultimately ruled that “[n]o statements previously made
by Mr. Langlois may be brought in” and instructed the jury to not consider or
make inferences about any statement that Langlois may have made.

¶24 Reeves nevertheless argues that, because the jury was exposed to
Langlois’s alleged statements to law enforcement through the prosecutor’s
questions, this was functionally the same as if the statements had been admitted.
In support of this proposition, Reeves relies on Douglas v. Alabama, 380 U.S. 415
(1965), and Bruton v. United States, 391 U.S. 123 (1968). However, neither case
squarely supports Reeves’s argument that a confrontation clause violation
occurred under the circumstances presented here.

¶25 In Douglas, 380 U.S. at 416, a co-defendant was called as a witness
at Douglas’s trial and invoked his Fifth Amendment privilege against self-
incrimination. The prosecutor was nevertheless permitted to ask him questions,
and in the course of those questions, the prosecutor read the entirety of the co-
defendant’s confession, which implicated Douglas. Id. Although the prosecutor’s
questions were not actually admitted into evidence, the Supreme Court determined

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No. 2025AP495-CR

that this procedure violated Douglas’s confrontation right. Id. at 420. The Court
reasoned that the combination of the co-defendant’s highly incriminating
statements (which were the only direct indication of Douglas’s guilt) and the co-
defendant’s invocation of the privilege against self-incrimination “created a
situation in which the jury might improperly infer both that the statement[s] had
been made and that [they] were true.” Id. at 419. Here, by contrast, Langlois did
not invoke his privilege against self-incrimination, and the statements the
prosecutor read did not directly implicate Reeves in the shooting. To be sure, the
rule from Douglas may have been implicated had the circuit court allowed the
questioning to continue, but the court appropriately cut the direct examination
short before more potentially incriminating details of Langlois’s prior statements
were conveyed to the jury.

¶26 Nor does Bruton help Reeves. See Bruton, 391 U.S. at 124. There,
Bruton was tried jointly with his co-defendant. At trial, the co-defendant did not
testify, but his confession was introduced into evidence. Id. The district court
instructed the jury that it could consider the co-defendant’s confession against the
co-defendant, but not against Bruton. Id. at 125. When the case reached the
Supreme Court, it held that Bruton was denied the right of confrontation
notwithstanding the limiting instruction. Id. at 126. The Court reasoned that, “in
the context of a joint trial,” the risk that the jury would consider the co-defendant’s
confession in determining Bruton’s guilt was too great to be cured by the limiting
instruction. Id. at 129, 137. Again, the significant difference between Bruton and
this case is that Langlois’s statements did not directly implicate Reeves.

¶27 Reeves may instead be arguing that the circuit court erred by not
taking action sooner to prevent the introduction of Langlois’s alleged out-of-court
statements. In other words, Reeves may be arguing that, instead of allowing the

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No. 2025AP495-CR

direct examination to continue, the court should have taken any number of other
actions that would have prevented the jury from hearing Langlois’s alleged
statements, such as by sustaining defense counsel’s initial objection, granting
counsel’s request to order the prosecutor to not ask about Reeves, or halting the
direct examination at an earlier point to determine whether Langlois would testify.

¶28 For the purposes of this appeal, we assume without deciding that the
circuit court erred by not taking any of the above actions. But this is no small
assumption in Reeves’s favor—generally speaking, trial matters such as these are
left to the court’s discretion. See, e.g., State v. Johnson, 2004 WI 94, ¶9, 273
Wis. 2d 626, 681 N.W.2d 901 (“Whether the circuit court erred in permitting the
questions … is a discretionary decision that we will not overturn unless the court’s
discretion was erroneously exercised.”). Here, it was not necessarily apparent
from the outset that Langlois would not respond to questions, and would therefore
be unavailable for cross-examination. Accordingly, although it may have been a
better course to attempt to discern whether Langlois would testify before allowing
the prosecutor to ask him about Reeves, it was not necessarily unreasonable for the
court to allow questioning to continue for a short spell under these circumstances.

¶29 But even assuming without deciding that the circuit court erred, we
are persuaded by the State’s argument that the error is harmless. WISCONSIN
STAT. § 805.18(2)—better known as Wisconsin’s harmless error rule—broadly
provides that “in any action or proceeding,” a judgment will not be reversed or set
aside or a new trial granted unless “the error complained of has affected the
substantial rights of [a] party.” See State v. Nelson, 2014 WI 70, ¶29, 355 Wis. 2d
722, 849 N.W.2d 317 (“Wisconsin’s harmless error rule” is found in § 805.18(2)
and “is made applicable to criminal proceedings by WIS. STAT. § 972.11(1).”).
Under this rule, an error is harmless if the party that benefited from the error (here,

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No. 2025AP495-CR

the State) proves “beyond a reasonable doubt that the error … did not contribute to
the verdict obtained,” and that the jury “would have found the defendant guilty
absent the error.” State v. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851 N.W.2d
434 (citations omitted). An error is considered “harmless” and will not warrant
reversal if it is “clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.” See State v. Harvey, 2002 WI 93,
¶49, 254 Wis. 2d 442, 647 N.W.2d 189 (citation omitted).

¶30 Here, as noted, the circuit court promptly gave a curative instruction,
which directed the jury to disregard Langlois’s alleged hearsay statements, and not
to draw any inferences based on those alleged statements. State v. Gary M.B.,
2004 WI 33, ¶33, 270 Wis. 2d 62, 676 N.W.2d 475 (if a curative instruction was
given, we presume that the jury followed that instruction). And importantly, the
two hearsay statements that the prosecutor presented through questioning did not
directly implicate Reeves in the shooting. Rather, the statements were about
Reeves’s ownership of a revolver, and that was not new information for the jury.
Indeed, the jury had already heard testimony from Reeves’s former girlfriend, who
testified that Reeves told her that he owned a revolver and that she had seen him
holding a revolver in her home. See, e.g., State v. Curbello-Rodriguez, 119
Wis. 2d 414, 426, 351 N.W.2d 758 (Ct. App. 1984) (holding that the introduction
of certain evidence was harmless because it was “merely cumulative” to other
evidence). As we discuss at greater length below, the State’s case against Reeves
was strong, and under the circumstances here, it is clear beyond a reasonable
doubt that the limited questioning of Langlois could not have tipped the balance in
a way that changed the outcome of the trial.

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No. 2025AP495-CR

B. Exclusion of Yoakum’s Testimony

¶31 As mentioned, the circuit court prohibited Reeves from calling
Yoakum as an alibi witness at trial because Yoakum violated the sequestration
order that was in place. On appeal, Reeves argues that the court’s ruling was
erroneous and that it prevented him from presenting a defense. We begin by
providing some additional background regarding the testimony that Yoakum was
expected to provide, his violation of the sequestration order, and the court’s
decision to exclude his testimony.

¶32 As noted, Yoakum was expected to testify that he picked Reeves up
at an apartment that was near the bar and drove Reeves to another apartment in
Madison that was not far from the gas station where the shootings occurred. In
addition to providing an alibi for the approximate time of the shooting, Yoakum’s
testimony would also support Reeves’s claim that he was not in possession of his
Malibu at the time it was captured on video in connection with the shootings, and
would explain why his phone pinged close in time and place to the crime scene.

¶33 Yoakum’s violation of the sequestration order occurred during a
recorded call from jail that he made to his girlfriend the day before he was
scheduled to testify. Yoakum’s girlfriend had been a spectator at the trial, and
during the call, Yoakum asked about the testimony that one of the trial witnesses
had given. Yoakum’s girlfriend responded that the witness testified that Reeves
“didn’t have the keys [to his Malibu] because somebody else had the keys.”
Yoakum responded, “[T]hat’s all I need to know. Yeah, that’s good. Hell,
yeah.… His alibi check[s] out. Same alibi.” Yoakum also said that he hoped that
Reeves would “beat this shit.”

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No. 2025AP495-CR

¶34 The State produced this recording the next day at trial outside of the
presence of the jury. The parties did not dispute that Yoakum violated the
sequestration order, which provided that “no witness shall, during the trial, speak
to anyone about what another witness has testified.” However, the parties
disagreed as to whether it was appropriate to exclude Yoakum’s testimony as a
consequence for the violation.

¶35 The decision to exclude a witness from testifying is generally within
the circuit court’s discretion. Nyberg v. State, 75 Wis. 2d 400, 409-10, 249
N.W.2d 524 (1977), overruled on other grounds by State v. Ferron, 219 Wis. 2d
481, 496, 579 N.W.2d 654 (1998). However, discretion is not “the equivalent of
unfettered decision-making.” Hartung v. Hartung, 102 Wis. 2d 58, 66, 306
N.W.2d 16 (1981). To be sustained, a discretionary determination must be made
based on the “appropriate and applicable law.” Id.

¶36 As relevant here, the controlling law is our supreme court’s decision
in Loose v. State, 120 Wis. 115, 120-23, 97 N.W. 526 (1903). In that case, the
court stated that “[a]n innocent party should not be deprived of the testimony of
one of [the party’s] witnesses because of the [witness’s] transgression of which
such party is innocent,” and that “[s]uch transgression may well bear on the
credibility of the witness’[s] testimony, … but the direct punishment for the
offense should be visited upon the [transgressor], as for a contempt of court.” Id.
Accordingly, the exclusion of a witness’s testimony based on the witness’s
violation of a sequestration order is not warranted unless “the party calling [the
witness] is a guilty participant therein.” Id. at 121; see also State v. Wright, 196
Wis. 2d 149, 159, 537 N.W.2d 134 (Ct. App. 1995) (the rule from Loose applies
“where the party intent on calling the witness is innocent” of the witness’s
violation of the sequestration order).

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No. 2025AP495-CR

¶37 Here, neither party brought the standard from Loose to the circuit
court’s attention, but the prosecutor alluded to its underpinnings. The prosecutor
argued that, in his view, there was not “any realistic way to not attribute”
Yoakum’s violation to Reeves, and further argued that the State would be
prejudiced if Yoakum was allowed to testify because “these witnesses are
conspiring to tailor their testimony.” According to the prosecutor, “the
appropriate remedy” would be to prevent Yoakum from testifying. Defense
counsel argued that excluding the testimony of his alibi witness would be
extremely prejudicial to Reeves and took the position that cross-examination was
the appropriate way to deal with the violation.

¶38 The circuit court concluded that “[t]he sanction for violating …
sequestration is that [Yoakum] is prohibited from testifying.” After defense
counsel continued to object, the court proposed a compromise: Yoakum would be
allowed to testify, and a stipulation would be read to inform the jury that Yoakum
had violated the sequestration order by discussing trial testimony. The State
opposed the proposed compromise and, over Reeves’s objection, Yoakum was
prohibited from testifying.

¶39 When making its decision to exclude Yoakum’s testimony, the
circuit court did not apply the standard from Loose. That is, the court did not
analyze or determine whether Reeves was a “guilty participant” in Yoakum’s
violation of the sequestration order. See Loose, 120 Wis. at 121. And, based on
our independent review, there are not sufficient facts in the record to support any
such determination. See Tralmer Sales and Serv., Inc. v. Erickson, 186 Wis. 2d
549, 573, 521 N.W.2d 182 (Ct. App. 1994) (“We search the record for reasons to
sustain the court’s discretionary decision.”); Office of Lawyer Regulation v.
Mutschler, 2019 WI 92, ¶16, 388 Wis. 2d 486, 933 N.W.2d 99 (“When a court

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No. 2025AP495-CR

does not make an explicit finding, an implicit finding may suffice, but only if the
facts of record support it.”). For these reasons, we conclude that the court
erroneously exercised its discretion in excluding Yoakum’s testimony.

¶40 The State makes three arguments to the contrary, none of them
persuasive.

¶41 The State first argues for a different interpretation of Loose,
specifically, that Loose permits but does not require admission when the witness
has violated a sequestration order and the party calling the witness was innocent in
the violation. In support, the State points out that in Loose, our supreme court
affirmed the circuit court’s discretionary decision to admit the witness’s
testimony. According to the State, Loose “should not be interpreted to mean that
the circuit court would have … erroneously exercised its discretion if it had
excluded the evidence.”

¶42 We disagree. As shown above, although the Loose court affirmed
the circuit court’s exercise of discretion, it also unequivocally stated that “[a]n
innocent party should not be deprived of the testimony of one of [the party’s]
witnesses because of the [witness’s] transgression of which such party is
innocent.” Loose, 120 Wis. at 120-23. This unequivocal language does not
appear to have been limited to the circuit court’s exercise of discretion in that case,
and instead appears to set forth a general rule disfavoring exclusion when the party
calling the witness is uninvolved in the witness’s violation of a sequestration
order.

¶43 Second, the State argues that the record supports a finding that
Reeves was in fact a guilty participant in Yoakum’s violation of the sequestration
order. The State relies on evidence that Reeves and Yoakum had a close

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No. 2025AP495-CR

relationship and contends that several features of the conversation between
Yoakum and his girlfriend—including Yoakum pressing for specifics about the
witness’s testimony, Yoakum telling his girlfriend that the details she recounted
were “all [he] need[ed] to know,” and Yoakum expressing hope for Reeves’s
acquittal—collectively prove Reeves’s involvement in the violation.

¶44 We are not persuaded. The circuit court did not consider the issue of
Reeves’s involvement in the violation, much less make a finding that Reeves was
a guilty participant. It is certainly possible that Reeves participated in some way
in the violation of the sequestration order, but based on the facts known to the
court, it is just as likely that Yoakum was freelancing. Apart from the existence of
a friendship between Reeves and Yoakum, all of the facts that the State relies on
are about Yoakum. The friendship, without more, does not demonstrate that
Reeves was somehow involved in Yoakum’s conduct, nor do the statements that
Yoakum made during the call move the needle in this respect. At most, those
statements indicate that Yoakum was interested in shaping his testimony to
strengthen Reeves’s alibi. The State does not point us to anything in the record
that suggests that Reeves encouraged Yoakum to take such action, and any
determination that he did would be based on nothing more than speculation.

¶45 Finally, to the extent that the State argues that the exclusion of
Yoakum’s testimony is proper because it was able to demonstrate that it would
have been prejudiced by Yoakum’s testimony given his violation of the
sequestration order, we disagree. As the Loose court explained, any prejudice
could have been remedied by impeaching Yoakum’s credibility through cross-
examination about the jailhouse call. Loose, 120 Wis. at 121.

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No. 2025AP495-CR

¶46 Having concluded that the circuit court erred when it excluded
Yoakum’s testimony, we consider whether the error was harmless. To that end,
we consider the importance of the error in the context of the trial as a whole. See
State v. Monahan, 2018 WI 80, ¶35, 383 Wis. 2d 100, 913 N.W.2d 894 (in “our
application of the harmless error rule,” we consider “the importance of the
erroneously included or excluded evidence”).

¶47 The State’s evidence against Reeves was strong. Reeves admitted
that he was with Langlois at the bar on the night of the shootings; that he had
driven to the bar in his Malibu; and that he was the man depicted in the bar’s
security footage wearing a distinctive “Hustle” t-shirt, black shoes with white
soles, and a large watch on his right wrist. The jury viewed security footage of the
shootings, which depicted a masked man who was also with Langlois, was
wearing the same distinctive shirt, shoes, and wristwatch that Reeves had been
wearing in the footage from the bar, appeared to have the same skin tone and build
as Reeves, and had arrived in what appeared to be the same car that Reeves had
driven to the bar. The surviving victim identified Reeves as the shooter, and two
witnesses, including Reeves’s former girlfriend, testified that Reeves confessed to
the shooting. The girlfriend also testified that Reeves had animosity towards
Young and had threatened to kill him prior to the shooting. The State presented
evidence that Reeves possessed the same kind of gun and the same kind of bullets
believed to have been used by the masked shooter. It also presented information
related to Reeves’s cellphone, which suggested that Reeves was in the vicinity of
the gas station before and after the shooting, and that one of the only times he was
not active on his phone that night was at the time the shootings occurred.

¶48 On the whole, and keeping in mind that credibility determinations
are reserved for the jury, the narrative of events that Reeves presented in his trial

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No. 2025AP495-CR

testimony strained credulity. Among other things, Reeves would have the jury
believe the reason that his car was at the crime scene was because he lent it to
Langlois; the reason that his cellphone pinged in the area of the shootings was
because he and Yoakum happened to be driving nearby to find Langlois so he
could retrieve a printer from Reeves’s vehicle; and the reason that the masked man
pictured in the security footage was wearing Reeve’s t-shirt was because the
masked man must have found it in the trunk of Reeves’s car. Moreover, as the
circuit court found in its postconviction order, portions of Reeves’s narrative were
contradicted by the video evidence. A jury could reasonably have viewed
Reeves’s explanations for the inculpatory trial evidence with skepticism and
concluded that they were contrived.

¶49 It is undeniable that Yoakum’s testimony was important to Reeves’s
defense. It was consistent, at least to a degree, with Reeves’s narrative and would
have provided at least some corroboration for Reeves’s account. In other words,
had Yoakum testified, there would have been two witnesses rather than just one
who testified that Reeves was driving with Yoakum in the vicinity at the time the
shootings occurred.

¶50 At the same time, there are good reasons to doubt that Yoakum’s
testimony would have moved the needle in any appreciable way or made Reeves’s
alibi any more compelling. If Yoakum had testified, the circuit court would have
instructed the jury that Yoakum violated the sequestration order by endeavoring to
learn about testimony that another witness gave at trial. Yoakum also would have
been subject to cross-examination about his close relationship with Reeves and his
violation of the sequestration order, including through the introduction of the jail
house phone call. Although the jury is always the ultimate arbiter of witness
credibility, Yoakum’s credibility, and thus the usefulness of his testimony to

20
No. 2025AP495-CR

Reeves’s defense, is more likely to have been diminished rather than bolstered by
the court’s instructions and the prosecutor’s cross-examination.

¶51 Accordingly, we conclude that it is “clear beyond a reasonable doubt
that a rational jury would have found [Reeves] guilty,” even if Yoakum’s
testimony had not been excluded. See Harvey, 254 Wis. 2d 442, ¶49 (citation
omitted).

C. The Prosecutor’s Closing Arguments

¶52 Reeves also takes issue with two aspects of the prosecutor’s closing
arguments. Specifically, Reeves challenges the portion of the closing argument in
which the prosecutor discussed Reeves’s failure to call Yoakum as a witness, and
he also challenges certain comments that the prosecutor made suggesting that
Langlois did not drive a Cadillac to the bar on the night of the shooting.
According to Reeves, these comments amounted to prosecutorial misconduct.

¶53 A prosecutor is afforded “considerable latitude” during closing
arguments. State v. Bergenthal, 47 Wis. 2d 668, 681, 178 N.W.2d 16 (1970).
The prosecutor may “comment on the evidence, detail the evidence,” and “argue
from it to a conclusion.” State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784
(1979). However, a prosecutor’s latitude to comment on evidence is
circumscribed by an obligation not to ask jurors to draw inferences that the
prosecutor knows or should know are not true. State v. Weiss, 2008 WI App 72,
¶15, 312 Wis. 2d 382, 752 N.W.2d 372.

¶54 Here, because defense counsel failed to object during the
prosecutor’s closing arguments, Reeves’s claims about the prosecutor’s comments
are subject to the “plain error doctrine.” See State v. Jorgensen, 2008 WI 60, ¶21,

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No. 2025AP495-CR

310 Wis. 2d 138, 754 N.W.2d 77 (“The plain error doctrine allows appellate
courts to review errors that were otherwise waived by a party’s failure to object.”).
To demonstrate a plain error, Reeves must not only show that the prosecutor’s
comments constituted error, but that the error was “clear or obvious.” State v.
Lammers, 2009 WI App 136, ¶12, 321 Wis. 2d 376, 773 N.W.2d 463; see also
Jorgensen, 310 Wis. 2d 138, ¶56 (Abrahamson, J., concurring). If Reeves meets
this burden, the burden then shifts to the State to prove that the error is harmless.
Lammers, 321 Wis. 2d 376, ¶14.

¶55 We begin with the prosecutor’s comments about Reeves’s alibi.
During his closing argument, the prosecutor asked: “Where is this person who
somehow can account for [Reeves’s whereabouts]? Not here. Where is this close
friend? Not here.” During the postconviction proceedings, the State conceded
that these comments “were likely inappropriate.” The State’s concession is
warranted given WIS. STAT. § 971.23(8)(a), which provides that “the [S]tate shall
not comment on the defendant’s … failure to call some or any of the alibi
witnesses.” This comment by the prosecutor squarely concerned Reeves’s failure
to call an alibi witness and was therefore contrary to § 971.23(8)(a). We conclude
that Reeves has met his burden to show that the comments were a “clear or
obvious” error. Lammers, 321 Wis. 2d 376, ¶12.

¶56 Turning to the prosecutor’s remarks about the car that Langlois
drove to the bar on the night of the shootings, we begin by providing some
additional background. At trial, it was established that Langlois consistently drove
two different vehicles, a Cadillac he owned and his girlfriend’s Buick. According
to Reeves’s trial testimony, Langlois drove his Cadillac to the bar on the night of
the shootings and there were issues with its power steering. As best we
understand it, although not explicitly stated in his testimony, Reeves may have

22
No. 2025AP495-CR

been trying to bolster the credibility of his narrative by suggesting that Langlois
had a reason to borrow Reeves’s Malibu that night, that reason being that Langlois
was having mechanical trouble with the Cadillac he was driving that night.

¶57 At trial, there was some witness testimony about what car Langlois
drove on the night of the shootings. Reeves testified that Langlois drove the
Cadillac, and Langlois’s girlfriend testified that she did not recall which vehicle
Langlois was driving. It is not apparent from the record that any video or
photographic evidence was presented at trial to show that Langlois drove his
Cadillac to the bar that night. However, based on the circuit court’s
postconviction decision, we understand that there was video evidence that the
State produced as part of the discovery materials that would have supported that
fact.

¶58 With this context, we turn back to the prosecutor’s closing argument.
Reeves specifically takes issue with the following remarks:

And you have this story about how [Reeves] lent his car to
Mr. Langlois because Mr. Langlois’[s] Cadillac supposedly
had power steering problems, despite the fact that, as
[Langlois’s girlfriend] told you, … they were using her
Buick that night[.]… What witness other than Mr. Reeves
told you there was a Cadillac belonging to Mr. Langlois in
[the] parking lot?

¶59 As Reeves correctly points out, the prosecutor misstated the
testimony from Langlois’s girlfriend. We conclude that this constitutes clear and
obvious error, given that the prosecutor should have known that this representation
was not accurate. See Weiss, 312 Wis. 2d 382, ¶15 (“Prosecutors may not ask
jurors to draw inferences that they know or should know are not true.”).

23
No. 2025AP495-CR

¶60 Reeves also contends that the prosecutor’s comment was contrary to
surveillance footage that was produced in discovery. As we best understand,
Reeves is arguing that because the prosecutor knew or should have known that
there was video footage depicting Langlois driving his Cadillac, it was improper
for the prosecutor to ask the jury to infer otherwise. See id. As noted, the circuit
court later found that this footage depicted Langlois driving a Cadillac, and the
State does not argue that this finding was clearly erroneous. Accordingly, we
conclude that the prosecutor knew or should have known that Langlois drove his
Cadillac, and it was error to make comments to the jury that suggested otherwise.

¶61 Yet, here again, these errors were harmless beyond a reasonable
doubt. The comments at issue were two passing remarks over a four-day jury trial,
with dozens of witnesses and over one hundred exhibits. See Monahan, 383 Wis.
2d 100, ¶35 (relevant to the harmless error analysis is “the frequency of the
error”). Under these circumstances, we are not persuaded that the jury was
significantly influenced by either comment, especially given that the circuit court
instructed the jury that the prosecutor’s comments were not evidence. We
presume that jurors follow jury instructions, which alleviates the risk that the
jurors placed “any significant weight” on the prosecutor’s remarks “other than the
weight that came from their own independent examination of the evidence.” State
v. Miller, 2012 WI App 68, ¶22, 341 Wis. 2d 737, 816 N.W.2d 331.

D. Unrequested Video Exhibit

¶62 Reeves’s final assertion of error is that the circuit court erroneously
provided the jury with a security footage exhibit of the shootings that it did not
specifically request. We disagree.

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No. 2025AP495-CR

¶63 By way of background, when the jury started its deliberations, the
circuit court told the parties that it was “not going to send any [exhibits] back with
the jury, and they can ask for what they want.” Shortly after deliberations began,
the jury asked about the evidence it could have access to in deliberations. The
court responded that if the jury “encounter[ed] a need to review a particular
exhibit or exhibits,” the jury “should make a specific request” and the court would
individually consider any such request.

¶64 The jury then made a number of requests to view particular exhibits.
The requests included certain still photographs and video clips from security
footage, including video of the shootings from a business next to the gas station
“looking east.” The circuit court and the attorneys watched the requested video to
confirm that it would be responsive to the jury’s request. After viewing the
eastward-looking video clip, the court stated: “I don’t think this is the one that
they want to see. This is the one they’re asking for. [But] I suspect it’s not the
one they want to see.” The court asked the prosecutor to “also have at the ready
the one looking west.” The court and attorneys then viewed that particular clip
and agreed that it would also be responsive to the jury’s request.

¶65 The jury was brought back in, and the eastward-looking video clip of
the shootings was played. The circuit court then stated that “[i]n the interest of
efficiency,” it had also “queued up the closer view” that was looking westward.
The court acknowledged that it did not know if the jury wanted to see that clip and
asked: “[R]ather than bringing you back if you go back to the [jury] room, does
anyone need to see that?” Some jurors responded that they would like to view the
westward-looking video clip that had been queued up, and the court played that
clip for the jury. At no point did defense counsel object to the court offering to

25
No. 2025AP495-CR

play the additional video for the jury, which the attorneys had previously agreed
was also responsive to the jury’s request.

¶66 On appeal, Reeves argues that it was error for the circuit court to
play for the jury this additional video footage that it did not specifically request.
By offering to play this additional footage, Reeves argues, the court improperly
weighed in on what evidence the jury should review.

¶67 The general rule is that “[i]t is within the circuit court’s discretion to
determine what exhibits are permitted in the jury room.” See State v. Jensen, 147
Wis. 2d 240, 259-60, 432 N.W.2d 913 (1988). However, the court should not give
“special significance to the evidence on one side of the controversy,” see
Mahoney v. Kennedy, 188 Wis. 30, 43, 205 N.W. 407 (1925), and given that the
judge is “a figure of authority and respect during the trial,” an intrusion on the part
of the judge into the jury’s deliberations has the potential to “affect those
deliberations,” see State v. Burton, 112 Wis. 2d 560, 569, 334 N.W.2d 263
(1983), overruled on other grounds by State v. Alexander, 2013 WI 70, ¶25, 349
Wis. 2d 327, 833 N.W.2d 126.

¶68 Here, because defense counsel did not object to the circuit court
providing the jury with the westward-looking video clip, Reeves must show that
the court’s action was a “clear or obvious” error pursuant to the plain error
doctrine. Lammers, 321 Wis. 2d 376, ¶12. This analysis is “akin to the
ineffective assistance of counsel requirement” that the law must be “clear and
settled” before an error will be deemed to be clear or obvious. See, e.g., State v.
Nelson, 2021 WI App 2, ¶48, 395 Wis. 2d 585, 954 N.W.2d 11 (2020) (citations
omitted).

26
No. 2025AP495-CR

¶69 With this standard in mind, we conclude that Reeves has not met his
burden to show that the circuit court’s actions were a clear or obvious error. To be
sure, courts should always be mindful of the sway their words and actions can
have. However, under these circumstances, the mere act of asking a jury whether
it wants to review a video exhibit that was related to its request, without more, is
not per se improperly influential or intrusive, especially when both parties agreed
that the video was responsive to the jury’s request.

E. Cumulative Error Analysis

¶70 Before concluding our analysis of the alleged trial errors, we briefly
address the concept of cumulative error. This is because under circumstances in
which more than one error occurred at trial, the cumulative effect of those errors,
while harmless on their own, “may, in certain instances, undermine a reviewing
court’s confidence in the outcome of the proceeding.” State v. Harris, 2008 WI
15, ¶110 & n.54, 307 Wis. 2d 555, 745 N.W.2d 397.

¶71 That is not the case here. We have explained why each of the trial
errors that occurred was harmless on its own. And here, the same is true when the
errors are considered cumulatively. Considering the staggering amount of
incriminating evidence against Reeves, which we have merely scratched the
surface in describing, we are convinced the jury would have found Reeves guilty if
the errors had not been made. Therefore, we conclude that the State has met its
burden to prove that these errors, whether viewed individually or cumulatively,
were harmless and “did not contribute to the verdict obtained.” See State v. Hale,
2005 WI 7, ¶2, 277 Wis. 2d 593, 691 N.W.2d 637.

27
No. 2025AP495-CR

II. Ineffective Assistance of Counsel

¶72 We now turn to Reeves’s ineffective assistance of counsel claim. To
prevail, Reeves must prove that his trial counsel’s performance was deficient and
that the deficient performance prejudiced the defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). A defendant has the burden to prove both
prongs of the Strickland test, and “[i]f the defendant fails to adequately show one
prong …, we need not address the [other].” State v. Elm, 201 Wis. 2d 452, 462,
549 N.W.2d 471 (Ct. App. 1996).

¶73 Reeves argues that his trial counsel was ineffective for a number of
reasons that are related to the claims of error that we have already discussed: for
failing to instruct Yoakum about the rules surrounding the sequestration order,
resulting in the exclusion of Yoakum’s testimony; for failing to object to the
prosecutor’s improper closing arguments; and for failing to object when the circuit
court provided the jury with exhibit footage it did not explicitly request. Reeves
also makes an additional argument concerning security video footage that counsel
could have but did not present at trial. As we now explain, none of these
arguments have merit.

¶74 We begin with trial counsel’s alleged failure to instruct Yoakum
about the sequestration order. During the Machner hearing, counsel
acknowledged that he did not specifically recall telling Yoakum about the order;
however, he also acknowledged that it was his “general practice” to inform
witnesses about sequestration orders. Based in part on this latter representation,
the circuit court found that there was “no credible evidence” that counsel had
failed to instruct Yoakum about the order. Reeves argues this finding was clearly
erroneous, but we need not resolve this factual dispute or decide whether Reeves

28
No. 2025AP495-CR

has met his burden to show deficient performance. Even assuming that counsel
was deficient in this respect, Reeves has not persuaded us that he was prejudiced
by counsel’s alleged error.

¶75 To demonstrate 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.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. Our supreme court has explained that in this context, the test for
prejudice is “essentially consistent” with the test for harmless error, except that in
ineffective assistance claims, the burden of proof is on the defendant rather than
on the State. See Harvey, 254 Wis. 2d 442, ¶41; State v. Dyess, 124 Wis. 2d 525,
543-45, 370 N.W.2d 222 (1985).

¶76 Here, we assume that if counsel had informed Yoakum about the
sequestration order, Yoakum would not have violated the order, he would have
testified at trial, and his credibility would not have been undermined by cross-
examination questions about his violation of the order. However, even if all these
events came to pass, Reeves has not persuaded us that there is a reasonable
probability of a different result. As noted above, the sequence of events that
Reeves laid out, and that Yoakum presumably would have corroborated, was not
all that compelling, and the jury would have had good reasons to doubt that
account even with Yoakum’s corroboration. See supra ¶48. This is especially
true when the inculpatory evidence that pointed to Reeves being the shooter was
overwhelming and when portions of Reeves’s narrative were contradicted by
video evidence. Accordingly, under these circumstances, we conclude that Reeves
has failed to show prejudice.

29
No. 2025AP495-CR

¶77 Turning to trial counsel’s failure to object to the prosecutor’s
comments during closing arguments and to the circuit court’s decision to offer to
play a video clip that the jury did not explicitly request, we also resolve both
claims based on lack of prejudice. These alleged errors were hardly central to the
issues at trial, and as discussed throughout this opinion, the evidence against
Reeves was staggering. See supra ¶47.

¶78 Reeves makes one additional ineffective assistance argument
concerning security video footage of the parking lot outside the bar, which was
produced in discovery but not presented by counsel at trial. This video footage
would purportedly have shown Reeves being dropped off in the parking lot around
12:53 a.m. to pick up Langlois’s Cadillac. Reeves alleges that counsel was
ineffective for not presenting this footage because it would have corroborated his
trial testimony that he returned to the bar at that time and did not have his Malibu.
He also argues that it would have corroborated his account that he changed out of
the “Hustle” t-shirt that he had been wearing at the bar but never changed out of
his white pants.

¶79 We conclude that the failure to present this video footage did not
amount to deficient performance. Although Reeves claims that the footage would
have helped corroborate his version of events, the footage is dark and grainy, and
it is not readily apparent that the man depicted in the video is Reeves. But even if
the jury were to credit that the man in the video was Reeves, it is not at all clear
that the video footage would have helped Reeves’s defense—in fact, it could just
as easily have bolstered the prosecution’s case. Although the video footage may
have been consistent with the narrative that was set forth in Reeves’s testimony
about driving Langlois’s Cadillac, it was equally consistent with the inculpatory
narrative set forth by the State’s theory of the case. That is, if Reeves and

30
No. 2025AP495-CR

Langlois drove to the gas station in the Malibu and shot Young and A.B. at
12:12 a.m., it would not be surprising that Reeves (or someone else) would have
returned to the bar approximately 45 minutes later to pick up Langlois’s Cadillac,
which had been left behind. Given the minimal probative value to the footage to
support Reeves’s narrative and the fact that the jury could also view the footage as
inculpatory, counsel was not deficient for failing to present it.

III. New Trial in the Interest of Justice

¶80 Reeves also asks us to use our discretionary authority to grant him a
new trial in the interest of justice. See WIS. STAT. § 752.35 (“In an appeal to the
court of appeals, if it appears from the record that the real controversy has not
been fully tried, or that it is probable that justice has for any reason miscarried, the
court may reverse the judgment … as … necessary to accomplish the ends of
justice.”). We exercise our authority to reverse in the interest of justice
“sparingly,” and “only in the most exceptional cases.” See State v. Schutte, 2006
WI App 135, ¶62, 295 Wis. 2d 256, 720 N.W.2d 469. Here, it is evident that the
real controversy—whether Reeves was the masked shooter—was fully tried, and
we are not persuaded that any of the errors made in Reeves’s case were so
fundamental that the use of our discretionary reversal power is warranted.

By the Court.—Judgment and order affirmed.

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

31