State v. Jesse N. McCauley ( 2022 )


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  •      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.
    December 6, 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.        2021AP191-CR                                                 Cir. Ct. No. 2016CF5760
    STATE OF WISCONSIN                                             IN COURT OF APPEALS
    DISTRICT I
    STATE OF WISCONSIN,
    PLAINTIFF-RESPONDENT,
    V.
    JESSE N. MCCAULEY,
    DEFENDANT-APPELLANT.
    APPEAL from a judgment and an order of the circuit court for
    Milwaukee County: JANET C. PROTASIEWICZ, Judge. Affirmed.
    Before Brash, C.J., Dugan and White, 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. 2021AP191-CR
    ¶1      PER CURIAM. Jesse N. McCauley appeals a judgment of
    conviction for felony murder and possession of a firearm by a felon. He also
    appeals an order of the trial court denying his postconviction motion. On appeal,
    he argues that he is entitled to a new trial because the judge was biased in favor of
    the State in violation of his right to due process, and that the State presented
    insufficient evidence to support his intent to rob the victim in this case. We
    disagree, and for the reasons set forth below, we affirm.
    BACKGROUND
    ¶2      McCauley was charged with felony murder, with the underlying
    offense of attempted armed robbery, and possession of a firearm by a felon as a
    result of his role in the shooting of Scott Ross on the night of December 7, 2016.
    As described in the criminal complaint, McCauley’s girlfriend, Lyneesha Battle,
    arranged to meet Ross for a date.1 When Ross arrived at Battle’s house, Battle and
    McCauley approached Ross in his car. Battle went to the passenger side door, and
    McCauley approached Ross at the driver’s side door. McCauley was holding a
    gun and told Ross to get out of the car. Ross drove away, and McCauley fired
    shots at Ross. Ross suffered a gunshot wound to his back and was pronounced
    dead at the scene.2
    1
    At trial, when asked if “a date means that probably is going to end up in prostitution,”
    Battle responded, “Maybe.”
    2
    Battle was also charged with felony murder for her role in Ross’s death; however, she
    entered into a plea agreement with the State that resulted in her pleading guilty to attempted
    armed robbery as a party to a crime in exchange for her testimony at McCauley’s trial. Battle had
    been sentenced by the time of McCauley’s trial and was serving her sentence. By the time of the
    trial, she was nearing the end of her term of initial confinement.
    2
    No. 2021AP191-CR
    ¶3     The case proceeded to a jury trial. The State called Battle as a
    witness at the trial, but during questioning regarding details of that night, Battle’s
    testimony consisted largely of responses to the effect that she did not remember.
    At one point, the trial court proceeded to call the attorneys to the bench and held a
    sidebar conference. At the conclusion of the sidebar conference, the trial court
    excused the jury. Once the jury was out of the room, the trial court said:
    All right. So Ms. Battle, I want to give you the
    opportunity to talk to your attorney. And this is my
    concern, all brought up by me:
    Your negotiation—what I heard in court today was
    that your negotiation for having your murder charge
    amended was partially due to the fact that you were going
    to provide truthful testimony here. I don’t know if you
    can’t remember anything, but it certainly seems a little
    strange to me that you could remember what you talked to
    Detective Jacks about a couple hours ago, and what you
    talked to the police about a couple years ago.
    So if you don’t remember, go ahead and persist in
    the kind of answers that you’re giving. I don’t know if the
    State is going to reevaluate your case; all I know is—what I
    heard is that part of your deal was premised on truthful
    testimony. And I am concerned for you that the testimony,
    as it’s coming in right now, may present a situation that the
    State moves to withdraw your plea and resentence you, and
    charge you with something completely different, like that
    murder charge.
    You know, if you don’t remember, you don’t
    remember. But I think Attorney Voss indicated to me he
    certainly wants the opportunity to talk to you about this.
    ….
    All right.      Attorney Lonski doesn’t know—
    indicated that, at this point, he hasn’t done any research on
    which way he’s leaning; it’s something he’s going to think
    about. And of course, Attorney Flanagan doesn’t think I
    should be interposing myself. But Ms. Battle, this is
    nothing other than to protect you with the kind of testimony
    you’re giving.
    3
    No. 2021AP191-CR
    ¶4      The trial resumed after Battle spoke with her attorney. At that point,
    Battle testified that she was afraid of someone named “Charlie” and that Charlie
    had picked her and McCauley up after the shooting. She also identified McCauley
    as the person who shot Ross, and she further testified that she saw McCauley
    standing there holding a gun after the shots were fired and Ross’s car had driven
    off. However, Battle also testified that “the plan” was not to shoot Ross. Instead,
    the plan was for McCauley to “take” Ross’s money. In fact, Battle indicated “that
    [McCauley] was going to demand Mr. Ross’s money, and Mr. Ross was going to
    give it up[.]” On cross-examination, Battle further testified that she “knew about
    the robbery.”
    ¶5      Ultimately, the jury found McCauley guilty of felony murder and
    possession of a firearm by a felon. He was subsequently sentenced to a total of
    fifty years of imprisonment, composed of thirty-five years of initial confinement
    and fifteen years of extended supervision.3
    ¶6      McCauley filed a motion for postconviction relief in which he
    argued that he was entitled to a new trial because the trial court “abandoned [its]
    neutrality and became an advocate for the [S]tate” when it admonished Battle. In
    the alternative, McCauley argued that he received ineffective assistance of counsel
    if his trial counsel failed to “properly object” to the trial court inserting itself into
    the trial.4
    3
    An additional count of possession of a firearm by a felon related to the firearm found in
    McCauley’s possession at the time of his arrest was dismissed and read in for purposes of
    sentencing.
    4
    McCauley has not pursued his claim of ineffective assistance of counsel on appeal.
    The State similarly does not pursue any argument on appeal that McCauley’s trial counsel failed
    to object.
    4
    No. 2021AP191-CR
    ¶7        Without requesting a response from the State or holding a hearing,
    the trial court denied McCauley’s motion saying:
    The court wholly rejects the defendant’s bias claim.
    There is no reasonable reading of the court’s comments as
    evincing any sort of bias toward the State. Rather, the
    totality of the record makes it clear that the procedure the
    court followed was entirely appropriate under the
    circumstances, particularly since it was revealed that Battle
    was fearful and had been threatened by “Charlie.” The
    defendant does not have a due process right to benefit from
    third-party threats toward the State’s witnesses. In sum, the
    court stands by its remarks during the trial and denies the
    defendant’s motion for a new trial on these grounds.
    In its written decision and order denying McCauley’s postconviction motion, the
    trial court also acknowledged that McCauley’s trial counsel objected to the judge’s
    interruption of Battle’s testimony when it stated that:                  “The court then
    acknowledged that counsel for the defendant was objecting to the court
    interjecting.”     The trial court thus did not address McCauley’s alternative
    argument for ineffective assistance of counsel and addressed the merits of
    McCauley’s postconviction motion.
    ¶8        McCauley now appeals.
    DISCUSSION
    ¶9        On appeal, McCauley argues that the trial court “abandoned its
    neutrality” and violated his right to due process when it “admonished” Battle. He
    also argues that there is insufficient evidence from which the jury could find that
    he intended to rob Ross, which was one of the elements of his conviction for
    felony murder. We disagree, and we address each of McCauley’s arguments in
    detail below.
    5
    No. 2021AP191-CR
    I.     Battle’s Testimony
    ¶10    In his first argument, McCauley argues that the trial judge violated
    his right to due process when she interrupted Battle during her testimony. He
    argues that the only interpretation of the judge’s interruption is that the judge was
    acting as an advocate for the State by raising concerns about the truthfulness of
    Battle’s testimony that overstepped the judge’s neutral role. McCauley asserts that
    “the judge perceived that McCauley was benefitting from Battle’s uncooperative
    testimony” and so, “without any motion from either party, the judge took it upon
    herself to make sure that McCauley did not benefit.” In so doing, McCauley
    contends that the judge “abandoned her neutrality” and “became the prosecutor,”
    and that the judge called Battle a liar and admonished Battle in order to persuade
    her to give testimony beneficial to the State. McCauley further argues that the
    judge’s own explanation in the denial of his postconviction motion makes this
    obvious when the judge stated, “The defendant does not have a due process right
    to benefit from third-party threats toward the State’s witnesses.” We disagree with
    McCauley.
    ¶11    “The right to an impartial judge is fundamental to our notion of due
    process.” Miller v. Carroll, 
    2020 WI 56
    , ¶15, 
    392 Wis. 2d 49
    , 
    944 N.W.2d 542
    (citation omitted). “We presume that a judge has acted fairly, impartially, and
    without bias.” Id., ¶16. The party asserting judicial bias bears the burden of
    overcoming the presumption by showing bias by a preponderance of the evidence.
    Id. If the presumption is rebutted, the result is a due process violation, and such
    an error is “structural and not subject to a harmless error analysis.” Id. “Whether
    a circuit court’s partiality can be questioned is a matter of law that we review
    independently.” State v. Goodson, 
    2009 WI App 107
    , ¶7, 
    320 Wis. 2d 166
    , 
    771 N.W.2d 385
    .
    6
    No. 2021AP191-CR
    ¶12     In this case, we are confronted with an issue of objective bias.5 See
    Miller, 
    392 Wis. 2d 49
    , ¶21.           “Objective bias can exist in two situations:
    (1) where there is an appearance of bias; and (2) where objective facts demonstrate
    that a judge treated a party unfairly.” State v. Marcotte, 
    2020 WI App 28
    , ¶17,
    
    392 Wis. 2d 183
    , 
    943 N.W.2d 911
    . “The appearance of partiality constitutes
    objective bias when a reasonable person would conclude ‘that the average judge
    could not be trusted to hold the balance nice, clear, and true under all the
    circumstances.’” 
    Id.
     (citation omitted). Where the appearance of bias “reveals a
    great risk of actual bias, the presumption of impartiality is rebutted, and a due
    process violation occurs.” 
    Id.
     (citation omitted).
    ¶13     We conclude that McCauley has not overcome the presumption and
    shown that the judge’s interruption of Battle’s testimony rises to the level of
    objective bias.     As previous cases instruct, “it is the exceptional case with
    ‘extreme facts’ which rises to the level of a ‘serious risk of actual bias.’” Miller,
    
    392 Wis. 2d 49
    , ¶24 (citation omitted); see also State v. Carprue, 
    2004 WI 111
    ,
    ¶¶63, 66, 
    274 Wis. 2d 656
    , 
    683 N.W.2d 31
    .
    ¶14     In Miller, our supreme court concluded that objective bias existed
    where the judge, who was Facebook friends with the mother who filed the motion,
    presided over a hotly contested two-day evidentiary hearing involving the sole
    custody and physical placement of a child. 
    Id.,
     
    392 Wis. 2d 49
    , ¶¶7, 25-35.
    During the twenty-five days between the judge’s acceptance of the mother’s friend
    5
    A judge may also be subjectively biased. See State v. Gudgeon, 
    2006 WI App 143
    ,
    ¶20, 
    295 Wis. 2d 189
    , 
    720 N.W.2d 114
    . Subjective bias is present when a judge has personal
    doubts as to whether he or she can be impartial. 
    Id.
     Because McCauley does not allege that the
    judge was subjectively biased, we do not address that issue.
    7
    No. 2021AP191-CR
    request and his issuance of his written decision entirely in her favor, the mother
    engaged with and reacted to at least twenty of the judge’s Facebook posts. Id., ¶8.
    The majority of the mother’s reactions were “likes” to the judge’s posts involving
    prayers and Bible verses he posted. Id. The court concluded that
    [The mother] was allowed the opportunity to give [the
    judge] additional information about herself and an extra
    “remember me” almost [twenty-five] different times during
    the time period when the matter was under advisement, all
    unbeknownst to [the father]. By reacting to and engaging
    with [the judge’s] posts, [the mother] was effectively
    signaling to [the judge] that they were like-minded and, for
    that reason, she was trustworthy. She was conveying to
    him off-the-record information about her values, character,
    and parental fitness—additional evidence [the father] did
    not have the opportunity to rebut.
    Id., ¶31. The court then concluded that “the extreme facts of this case rebut the
    presumption of judicial impartiality and establish a due process violation.” Id.,
    ¶36.
    ¶15     In Marcotte, this court concluded that Marcotte had met his burden
    to demonstrate objective bias based on the judge’s comments that indicated that he
    had determined, before sentencing after Marcotte’s revocation of probation, that
    Marcotte would be sentenced to prison if he did not succeed in drug court. Id.,
    
    392 Wis. 2d 183
    , ¶1.6 This court noted that
    [A]t various times before Marcotte’s sentencing after
    revocation hearing, [the judge] communicated to Marcotte
    that he would be sentenced to prison if he did not succeed
    in drug court. In particular, [the judge] expressly told
    6
    This court also concluded that “a reasonable person would conclude there was a great
    risk that [the judge’s] personal frustration with Marcotte’s failure in drug court would lead him to
    impose a harsher sentence than he would have otherwise imposed had he not presided over the
    drug court proceedings.” State v. Marcotte, 
    2020 WI App 28
    , ¶30, 
    392 Wis. 2d 183
    , 
    943 N.W.2d 911
    .
    8
    No. 2021AP191-CR
    Marcotte during one drug court hearing that if he was
    discharged from the drug court program, he would “get
    sentenced and … go to Dodge.” [The judge] also warned
    Marcotte during his original sentencing hearing that if he
    did not succeed in drug court, there would be “no mercy”
    when Marcotte returned for sentencing after revocation.
    [The judge] followed through on that promise at Marcotte’s
    sentencing after revocation hearing, imposing a sentence
    longer than those requested by both the State and the DOC.
    Moreover, [the judge] stated during the sentencing after
    revocation hearing that because Marcotte had failed in drug
    court, he had “no choice” but to sentence him to prison.
    Id., ¶19. The court then concluded that “[a] reasonable person would interpret
    these comments to mean that [the judge] had decided long before Marcotte’s
    sentencing after revocation hearing that he would impose a prison sentence if
    Marcotte was terminated from drug court.” Id.
    ¶16    Here, we conclude that the judge’s interruption of Battle’s testimony
    does not rise to the same level of extreme facts demonstrated by the cases
    mentioned above.      Importantly, the judge here was not the fact finder at
    McCauley’s trial. Indeed, the jury—the ultimate fact finder at McCauley’s trial—
    was absent from the courtroom during the judge’s interruption of Battle’s
    testimony, and the jury was unaware of the judge’s comments and Battle’s
    conversation with her attorney. The judge also did not threaten Battle that the
    State would revoke the plea agreement, but only indicated, out of concern for
    Battle, that it was something that the State might consider if Battle continued to
    testify in a seemingly uncooperative manner. See Carprue, 
    274 Wis. 2d 656
    , ¶41
    (“While the court cannot function as a partisan, it may take necessary steps to aid
    in the discovery of truth.” (citation omitted)); see also United States v. Smith, 
    997 F.2d 674
    , 680 (10th Cir. 1993) (“[A]s a general rule a court ‘has the discretion to
    warn a witness about the possibility of incriminating’ himself or herself.” (citation
    omitted)); United States v. Arthur, 
    949 F.2d 211
    , 215 (6th Cir. 1991) (“The
    9
    No. 2021AP191-CR
    district court has the discretion to warn a witness about the possibility of
    incriminating himself.”). After explaining the interruption, the judge then also
    allowed Battle time to speak with her attorney and did not continue the trial until
    Battle’s attorney was satisfied that he had sufficient time to consult with Battle.
    Therefore, we reject McCauley’s argument.
    ¶17    In reaching this conclusion, we emphasize that “[w]hile prudence
    would have counseled less assertive conduct from the circuit judge, the law does
    not demand a reversal of [McCauley’s] conviction.” See Carprue, 
    274 Wis. 2d 656
    , ¶1. Thus, “[w]hile the circuit judge’s actions were inadvisable, the defendant
    has failed to demonstrate he is entitled to reversal of his conviction under any
    applicable legal theory.” Id., ¶3.
    II.    Sufficiency of the Evidence
    ¶18    McCauley additionally argues that the State presented insufficient
    evidence to prove that McCauley intended to rob Ross and thus, the State
    presented insufficient evidence to support his conviction for felony murder.
    Specifically, McCauley argues that the State presented insufficient evidence of his
    intent because Battle testified that McCauley intended to “take” Ross’s money.
    He then argues that “take” does not mean that McCauley intended to “steal”
    Ross’s money.
    ¶19    In addressing McCauley’s argument, we first note that McCauley
    failed to refute the State’s argument that the evidence was sufficient to support his
    conviction for felony murder in his reply brief, and therefore, we conclude that he
    has conceded any argument regarding the sufficiency of the evidence. See United
    Coop. v. Frontier FS Coop., 
    2007 WI App 197
    , ¶39, 
    304 Wis. 2d 750
    , 
    738 N.W.2d 578
     (failing to refute a proposition asserted in a response brief may be
    10
    No. 2021AP191-CR
    taken as a concession). Nevertheless, in the interest of being complete, we address
    the merits of McCauley’s arguments. After considering his arguments and the
    State’s arguments, we agree with the State’s arguments. Thus, we conclude that
    the evidence introduced at trial was sufficient to support the jury’s verdict.
    ¶20       A challenge to the sufficiency of the evidence to support a criminal
    conviction 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
    . State v. Poellinger establishes the
    standards that we apply when reviewing the sufficiency of the evidence to support
    a conviction as follows:
    [We] may not substitute [our] 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. If any possibility
    exists that the trier of fact could have drawn the appropriate
    inferences from the evidence adduced at trial to find the
    requisite guilt, an appellate 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.
    
    Id.,
     
    153 Wis. 2d 493
    , 507, 
    451 N.W.2d 752
     (1990) (citations omitted).
    Additionally,
    [i]n reviewing the sufficiency of circumstantial evidence to
    support a conviction, [we] need not concern [ourselves] in
    any way with evidence which might support other theories
    of the crime. [We] need only decide whether the theory of
    guilt accepted by the trier of fact is supported by sufficient
    evidence to sustain the verdict rendered.
    
    Id. at 507-08
    .
    11
    No. 2021AP191-CR
    ¶21     As the State correctly asserts in its argument, McCauley’s argument
    is nothing but a dispute with the inference the jury drew from the evidence
    adduced at trial as to the element of intent.7 McCauley asserts that Battle testified
    that McCauley said he was going to “take” money from Ross. He then argues that
    “taking” is not necessarily stealing and that here there is a wholly reasonable
    explanation why McCauley would be taking money from Ross—because Ross
    was going on a prostitution date with Battle. In other words, McCauley is arguing
    that the evidence was insufficient to sustain his conviction because there is a
    different inference the jury could have drawn from the fact that he planned to take
    money from Ross that was consistent with his innocence.
    ¶22     By contrast, the State argues that it was for the jury to determine if
    the fact that McCauley decided to arm himself with a gun and go outside to take
    money from Ross sufficiently showed an intent to steal Ross’s money forcibly by
    threatening him with the gun. It further argues that the jury could rationally
    conclude that McCauley arming himself with the gun, saying he was going to take
    Ross’s money, and attempting to order Ross out of the car proved that McCauley
    intended to commit armed robbery.
    ¶23     As noted, we agree with the State. We conclude that the jury clearly
    rejected McCauley’s inference when it found him guilty and instead chose to infer,
    taking into account the circumstances under which Ross met with Battle that night,
    that “take” meant that McCauley intended to “steal” Ross’s money. This is a
    7
    As relevant to McCauley’s argument regarding intent, McCauley’s charge of felony
    murder, with the underlying offense of attempted armed robbery, required that the State prove
    that McCauley attempted to take Ross’s property with the intent to steal it. See WIS JI—
    CRIMINAL 1480.
    12
    No. 2021AP191-CR
    reasonable inference that the jury was entitled to draw from Battle’s testimony.
    See Poellinger, 
    153 Wis. 2d at 506
     (“In viewing evidence which could support
    contrary inferences, the trier of fact is free to choose among conflicting inferences
    of the evidence and may, within the bounds of reason, reject that inference which
    is consistent with the innocence of the accused.”). We, therefore, will not upset
    the jury’s chosen inference, and we conclude that the evidence was sufficient to
    support the jury’s verdict.
    CONCLUSION
    ¶24   In sum, we reject McCauley’s arguments for a new trial. McCauley
    has failed to demonstrate that the judge’s interruption of Battle’s testimony
    violated his right to due process, and McCauley has both conceded that the
    evidence was sufficient and also failed to demonstrate that the State presented
    insufficient evidence of McCauley’s intent to steal at trial.      Accordingly, we
    affirm.
    By the Court.—Judgment and order affirmed.
    This opinion will not be published.        See WIS. STAT. RULE
    809.23(1)(b)5. (2019-20).
    13
    

Document Info

Docket Number: 2021AP000191-CR

Filed Date: 12/6/2022

Precedential Status: Non-Precedential

Modified Date: 9/9/2024