State v. Frankie J. Covington ( 2021 )

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.
March 16, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP5-CR Cir. Ct. No. 2017CF3535
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
FRANKIE J. COVINGTON,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Milwaukee
County: PEDRO COLON, Judge. Affirmed.
Before Dugan, Donald 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).
¶1 PER CURIAM. Frankie J. Covington appeals the judgment of
conviction for five counts of burglary of a building or dwelling as a party to a
crime. He argues that the trial court violated his Sixth Amendment rights of
No. 2020AP5-CR
confrontation by limiting his cross-examination of his co-actor in the crimes. We
conclude that even if we assume that Covington’s cross-examination was
improperly limited, any such error was harmless. Accordingly, we affirm.
BACKGROUND
¶2 Covington was arrested in July 2017 for five residential burglaries in
June and July, each involving older residents whose homes were burglarized while
they were out working in their yards and the doors to their houses were unlocked.
According to the criminal complaint, Covington entered each house, stole
valuables, and then escaped in a black Cadillac Escalade driven by Tangela
Coward, who was arrested at the same time. At Covington’s jury trial in
September 2018, the jury heard testimony from victims of all five burglaries,
seven law enforcement officers, and Coward. Using that testimony, the State laid
out detailed evidence about the burglaries, which occurred on June 22, June 25,
June 27, July 8 and July 14, 2017. Because the burglaries took place in the City of
Milwaukee and the Village of Wauwatosa, both police departments were involved
in the investigation, as well as an investigator with the Milwaukee County District
Attorney’s Office.
Police testimony
¶3 Detective Martin Keck of the Wauwatosa Police Department
testified that in the summer 2017, he investigated a string of burglaries with a
unique method of operation:
[T]hey were during the day time. Many of them
were to residences that were unlocked. So, typically, a
burglary a lot of times you see a kicked in door or a broken
window that wasn’t the case. And in the incidents the
victims were elderly and were present at the house, but out
in the yard when the burglaries occurred.
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….
…Another thing that was unique is, typically, the
items that were taken were credit cards or small pieces of
jewelry.
¶4 Detective Keck testified that two suspects developed for the
burglaries: Covington and Coward. He investigated fraudulent credit card
transactions made on the June 25 burglary victim’s credit card; 1 he retrieved video
surveillance from transactions at Macy’s, Victoria’s Secret, and a gas station. In
reviewing the store surveillance from Macy’s, Detective Keck saw Covington and
Coward walking around together in the store, and they made two purchases in
which Coward presented a credit card to the cashier. He then viewed the
surveillance video from Victoria’s Secret and again saw Covington and Coward
make a clothing purchase, with Coward presenting a credit card.
¶5 After noticing that the woman in the surveillance video was wearing
a Milwaukee County Zoo hat, Detective Keck worked with a Milwaukee County
Sheriff’s deputy who talked to employees at the zoo who identified Coward as an
employee there. Detective Keck confirmed Coward’s identity when he “looked up
a photo of her through police records and found that she did match precisely” the
woman in the surveillance images. After identifying Coward by name, he learned
from Milwaukee Police that Covington was her associate and he was the owner of
a black 2007 Cadillac Escalade. Detective Keck testified that he used the
Automated License Plate Reader System (ALPRS),2 to identify the Escalade
1
Officer Will Kirk of the Wauwatosa Police Department also testified about meeting
with the victim of the June 25 burglary and communicating with her as she passed along
information from her bank about where the stolen cards were used and at what times.
2
Wauwatosa employs the ALPRS, which uses cameras on top of squad cars, by the light
bar, so that “as the squad car drives around the city every time it recognizes a license plate it takes
a picture. And it records the time and the GPS coordinates of where that picture was taken.”
3
No. 2020AP5-CR
registered to Covington.3 His investigation led him to the Northeastern Wisconsin
Pawn Registry System (NEWPRS),4 which revealed that Coward had pawned
items on five or six occasions in June and July 2017 and the items pawned
included jewelry from the June 22, June 27, and July 8 burglaries.5
¶6 Detective Michael Martin of the Milwaukee Police Department
testified that he spoke with a victim of the June 22 burglary, who provided him
with a bank statement of “ten fraudulent charges on the credit card” stolen in the
burglary. The credit card was used on the same day as the burglary, with
purchases in Green Bay at a Walgreens and a Walmart store. He reviewed video
footage that correlated with each credit card transaction, and he identified Coward
as the person making the transaction inside the store. In the surveillance video
from Walmart, Covington is seen in the store with Coward.
¶7 Detective Martin investigated the July 8 burglary; he testified that
the victim’s credit card was used for three transactions on the day of the burglary
at a gas station in Milwaukee. When he reviewed surveillance video provided by
the gas station, Detective Martin saw both Coward and Covington during the
transactions, with Covington “actually seen using the card.” He testified that the
video also showed Coward and Covington arrive at the gas station in a black
3
The specific features by which ALPRS recognized Covington’s Escalade included
“chrome wheels, the chrome trim along the doors, the step to get into the car, the roof rack, the
brake lights, the headlights.” Additionally, it compared the “the condition of the car; [which is]
in neat, good, clean condition. There is no damage.”
4
NEWPRS is a system in which “any time an individual pawns or scraps an item in
Wisconsin the business that pays for that item is required by law to register this through the
municipality that it’s located in and then it’s also required to put this online.”
5
Detective Keck testified that Covington also went to a pawn shop on July 7 and July
11. The items he pawned were not connected with the items stolen in the five burglaries.
4
No. 2020AP5-CR
Cadillac Escalade. Detective Martin also testified about the recovery of two rings
stolen in the July 8 burglary.
¶8 Officer Christopher Shorts of the Milwaukee Police Department
testified that he investigated jewelry taken in the June 22 burglary; records from
two pawn shops showed that Coward sold some of the stolen jewelry on June 24.
In the first store, a photo of Coward was taken at the time of sale; in the second
store, Officer Shorts identified Coward and Covington in video surveillance. In
his investigation of the July 8 burglary, Officer Shorts found two of the rings
stolen that day in a NEWPRS pawn shop record, which contained a picture of
Coward’s Wisconsin identification card and the two rings at issue. Surveillance
video footage of the jewelry store’s parking lot showed Coward and Covington
entering the store on July 8, 2017.
¶9 Detective Kelly Zielinski of the Wauwatosa Police Department
testified about his investigation of the June 25 burglary, which included following
up on an alternate suspect6 and sharing surveillance videos from Macy’s and
Victoria’s Secret with Detective Keck. Detective Zielinski testified that his
investigation of the June 27 burglary was slowed because the victim was unsure
how to get credit card records of the fraudulent activity for the police to pursue.
Nevertheless, Detective Zielinski recovered that victim’s late wife’s wedding rings
6
Detective Zielinski followed up on a lead from the victim that she had seen a
suspicious person at the store at which she was shopping shortly before the burglary and that her
husband confronted someone while walking their dog on the day of the burglary. Although
Covington cross-examined Detective Zielinski on the alternate suspect, Detective Zielinski
testified that his investigation did not yield any information. He investigated this lead by going
undercover as a shopper in the store and then talking to store management. The victim was a
regular customer of the store, and store management remembered her shopping there that day but
did not remember anyone following her around.
5
No. 2020AP5-CR
from the pawn shop the day after the June 27 burglary. In the pawn shop records,
Detective Zielinski found a receipt for Coward selling five rings, including these
two stolen wedding rings. The detective identified Coward with Covington in the
background in surveillance images inside the pawn shop on that day.
¶10 Detective Zielinski took part in the surveillance of Covington on
July 14; he testified that he saw Covington getting into the Escalade’s passenger
seat and Coward getting into the driver’s seat. He saw Covington’s vehicle parked
southbound on North 59th Street just south of Washington Boulevard. He
followed the Escalade when it drove to the gas station on North 35th Street, with
Coward driving and Covington in the passenger seat. He saw Covington swipe a
credit card at the pump to purchase gas for the Escalade and then again for the
vehicle of an unknown person. He followed the Escalade when it left the gas
station and proceeded to a parking lot; he had a clear view of the Escalade from
about 100 to 150 feet away. He observed Covington exit the car, walk over to a
dumpster, partially lift the lid, throw something inside it, and return to the
Escalade.
¶11 Detective Zielinski followed Covington to the AutoZone store near
North 24th Street and West North Avenue; he testified that “we made a dynamic
entry … with several, five to six officers, in plain clothes along with MPD and
uniformed officers.” Inside the store, the detective arrested Covington, who was
taken into custody without incident. The search of Covington’s pockets showed
he had seventy-seven dollars in cash, a three-inch folding knife, and seven or eight
credit cards, debit cards, and rewards cards, all bearing the name of the victim of
the burglary that occurred thirty minutes earlier that day. Covington was also
wearing two bracelets stolen from that burglary. In the search of the Escalade, the
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No. 2020AP5-CR
police recovered jewelry that the victim identified as stolen from her residence that
day.
¶12 Robert Stelter, an investigator with the Milwaukee County District
Attorney’s Office, testified about the surveillance and arrest of Covington and
Coward on July 14. After getting a warrant to place a GPS tracker on the
Escalade, the police followed it into a residential neighborhood near North 60th
Street and Washington Boulevard, on the border of Milwaukee and Wauwatosa.
Investigator Stelter testified that while parked on North 59th Street, he watched
the Escalade parked on the same street, and he then saw Covington walk east on
Washington Boulevard toward North 59th Street. Covington got into the Escalade
on the passenger’s side and the vehicle drove off.
¶13 Investigator Stelter followed the Escalade using the GPS tracking
system to a gas station on North 35th Street, where he observed Covington and the
Escalade near the credit card reader at the pump, then watched Covington at the
credit card reader for another pump for a different vehicle, and finally saw the
Escalade leave. Investigator Stelter followed the Escalade and observed it pull
into a nearby parking lot with a dumpster in it. The police followed the GPS
tracking system that showed the Escalade in the area of North 24th Street and
West North Avenue, where Investigator Stelter spotted the Escalade in the parking
lot of an AutoZone store. Investigator Stelter proceeded inside the AutoZone and
placed Coward under arrest, at which point she dropped a credit card bearing the
name of the victim of that day’s burglary.
¶14 Investigator Stelter testified that while they followed the Escalade,
Wauwatosa Police had a burglary complaint at a house on North 60th Street,
which was a block west of where the Escalade had been parked. Investigator
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No. 2020AP5-CR
Stelter testified that the burglary victim reported that her credit cards had been
stolen and they had just been used at a gas station on North 35th Street. The times
the credit cards were used coincided with the times Covington was seen on video
surveillance at the gas station.
¶15 Detective James Short of the Wauwatosa Police Department testified
that he made contact with the victim of the July 14 burglary, before she even
realized the burglary had happened because he was looking for people gardening
in their yards in the neighborhood where the GPS tracking system placed
Covington’s vehicle. Detective Short returned after the victim called police when
she went inside her house and noticed her wallet was missing from her purse, and
screens in the back door and window were cut. Detective Short retrieved the
victim’s wallet from a dumpster in a parking lot, where other officers had watched
Covington drop something inside. The wallet was confirmed to belong to the
victim.
¶16 Detective Stephen Kirby of the Wauwatosa Police Department
testified that he conducted a follow up investigation for the July 14 burglary. He
retrieved and reviewed surveillance video footage from the gas station on North
35th Street and identified Covington and the Escalade at the pump and Coward
inside the store making a purchase. He testified that the transaction identification
numbers matched the store copy of the receipt, a receipt found in the Escalade, and
the records from the burglary victim’s credit card company.
Victim testimony
¶17 The jury also heard testimony from the victims of the five burglaries.
One of the victims of the June 22 burglary was working in his rose garden in the
front of his house when he saw a black Escalade pass in front of his house and
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No. 2020AP5-CR
then shortly thereafter, he saw it in the alley behind his house. The next day, his
credit card company informed him that there had been fraudulent purchases on his
wife’s credit card. When he examined the house, he noticed that his wife’s ring,
cash, prescription glasses, and his wallet, which contained credit and debit cards,
were missing.
¶18 The victim of the June 25 burglary discovered her wallet had been
taken while she was gardening in her front yard. In the three-and-a-half hour time
period after she returned home from shopping and started gardening until she
noticed her missing wallet, her credit cards had been used at two gas stations,
Victoria’s Secret, and Macy’s.
¶19 The victim of the June 27 burglary called the police after his credit
card company notified him of unusual use. When he checked where his credit
card was stored, he noticed that the card was missing as well as his wife’s
engagement and wedding ring, and some cash. He testified that the afternoon
before the burglary, he had been in the yard planting a new plant and the back
door to the house was unlocked.
¶20 The victim of the July 8 burglary was working in his garden when he
came inside and immediately noticed that his wallet looked very thin; when he
looked inside, $250 in cash and his credit card were gone. During the
investigation, the victim discovered that two rings, a couple of gold chains and
some old non-working watches were taken from his bedroom dresser.
¶21 The victim of the July 14 burglary was working in her yard when a
police detective approached to ask if she had noticed anyone suspicious in the
neighborhood. She had not, but when she went inside the house, she discovered
her wallet was missing from her purse. She also discovered that someone had cut
9
No. 2020AP5-CR
the screen to the security door in the back and to the kitchen window; the door had
been left ajar. Her wallet contained credit cards and cash; from her credit card
company she learned that there were three unauthorized transactions on her credit
card. Several days after the burglary, the victim noticed that jewelry was missing
from her bedroom. She identified multiple pieces of jewelry from the items
recovered after Covington’s arrest.
Coward’s testimony
¶22 The State called Coward to testify to the events of the burglaries.
Prior to her taking the stand, the trial court addressed concerns regarding
Covington’s cross-examination of Coward, who was negotiating a plea agreement
with the State. The trial court suggested the State would want a motion in limine
to exclude testimony “regarding those negotiations. Because they’re not in lieu of
cooperation or testimony in this case and therefore she is testifying voluntarily.”
Covington argued that he wanted to cross-examine Coward on the “court record
that Ms. Coward had set out her plea multiple times after receiving the State’s
offer.” Trial counsel contended that Coward had received an initial and amended
offer, each offer had multiple court appearances that set out her plea date further in
the future, and at that time, she was scheduled for a plea date for the week after
Covington’s jury trial date. Trial counsel argued that this line of questioning was
relevant and it “would be used to impeach her mindset to believe that she’s going
to be receiving an offer based on her testimony here. Whether or not it was a
formal offer … based on the record that I have … her charges have not yet been
amended” and her case was not resolved.
¶23 The trial court and counsel discussed the offers made to each
defendant on the record. Coward’s offer was for her to plead to three counts of
10
No. 2020AP5-CR
burglary, dismiss and read in two counts of burglary, and treat a charge of
disorderly conduct while armed as a read in. The prosecutor asserted that Coward
had the same “offer whether she testifie[d] or not.” Covington’s offer expired
prior to trial, but his previous offer was to plead guilty to all five counts of
burglary and the State would recommend a sentence of fifteen years consecutive to
his revocation sentence.
¶24 The prosecutor argued that Covington and Coward’s respective
offers were “broadly different, widely different because of the totally different
roles in all of the burglaries. The one hundred percent different [criminal] records,
her having none and him having a record going back to the 1980[s].” The
prosecutor continued that “because she [was] not getting anything from the State,
she’s not receiving a different offer, and she’ll testify to that. What my
recommendation for her [at this time wasn’t] relevant.” The prosecutor argued
that defense counsel’s concerns about Coward’s mindset would be addressed if
Coward testified that she knows “the State [was] not giving [her] consideration.”
¶25 The trial court ruled as follows:
It doesn’t appear that there is any consideration of the
testimony.... It is an offer of settlement. Offers of
settlement are never required to [unintelligible] through the
trial. So I’m going to disallow it. You’re not going to be
able to go into the offer itself. Since there is no
consideration for her testimony at this point. Now, that
may have the effect of binding her to that offer in the
future, but that’s none of your client’s concern at this point.
That’s just a question of fairness for the [c]ourt being
considered. So she’s going to testify. She’s not going to
testify about any consideration given.
¶26 Trial counsel again raised concerns about the court record showing
the attempts to have Coward enter her plea, which showed “that she has been set
numerous times for a plea, but has not entered a plea. And then her plea hearing
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No. 2020AP5-CR
happens to be the date after the week after the trial is over.” The trial court
acknowledged counsel’s concern, but stated that because the prosecutor, as “an
officer of the Court” indicated that “there is no consideration,” then the trial court
reiterated its ruling that Covington could not question Coward about the
negotiations of her plea.
¶27 Coward testified that she had an open case for five burglary charges
after her arrest in July 2017; these were all burglaries she had been charged with
committing along with Covington. Coward testified that she understood that her
offer from the State on that open case would be the same whether or not she
decided to testify.
¶28 Coward’s testimony about the burglaries in June and July 2017 then
followed. On multiple occasions, Coward drove Covington’s black Cadillac
Escalade and Covington would tell her to pull over in a neighborhood, he would
get out of the car and walk away, and then she would see him waving and “drive
to wherever he [was] standing and he would get in the car.” She initially did not
know what Covington did when he left the car, but she found out he was
committing burglaries. When he returned to the vehicle, he came back with things
like “a gun, a box full of coins, money,” jewelry, and credit cards. On one of the
days that she dropped off Covington in a neighborhood, he returned with “a bunch
of credit cards” and then later that day, she went shopping with Covington and she
bought things at Macy’s and Victoria’s Secret with credit cards that Covington
gave her.
¶29 She dropped Covington off in multiple neighborhoods, including
those near the June 25, June 27, July 8, and July 14 burglaries. At two of the drop
off points, she remembered seeing older people working in their yards. Coward
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No. 2020AP5-CR
testified that she went multiple times to pawn shops with Covington to sell
jewelry. She identified paperwork from two pawn shops showing sales she made
of items given to her by Covington. Coward identified herself and Covington in
trial exhibit photographs taken from surveillance video footage at gas stations,
stores, and pawn shops.
¶30 Coward testified that on the day of her arrest, Covington exited the
vehicle and walked away. Coward waited in the vehicle for twenty to twenty-five
minutes, and when he returned, “[h]e came back with a bunch of jewelry, cards,
wallets, and stuff like that.”
¶31 On cross-examination, Coward reviewed images from her visits to
the pawn shops with Covington and testified that she stood closer to the cashier,
her name appeared as the seller of the jewelry, and that Covington never used his
ID during pawn shop transactions. She testified that she only drove Covington’s
Escalade when she was with him, she never had her own keys to the vehicle, and
he never let her use the vehicle by herself. Coward testified that she felt forced to
purchase items at Macy’s when she shopped using a stolen credit card with
Covington, but she admitted that she did not “run away” from him. She testified
that she never saw Covington enter someone’s home. She testified that when she
asked Covington where he got the credit cards, he told her that “some people that
do[] drugs brought them to him.”
¶32 Trial counsel then attempted to question Coward about the status of
her own case. She asked Coward about her earlier testimony about not getting a
deal or consideration for her testimony, to which Coward replied, “Correct.” Trial
counsel then asked Coward if she was “currently, being charged with burglaries”
and she replied, “Yes.” Trial counsel stated that she had “a copy of [Coward’s]
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No. 2020AP5-CR
certified record of court records—.” The prosecutor interjected that she wanted
“to object,” but instead, she “just ask[ed] for a side bar.” After a side bar, trial
counsel withdrew her line of questioning and instead questioned Coward if she
ever told “the officers, during [her] interview, that [she] saw [Covington] with
[her] eyes, saw him enter into other people’s homes and saw him take other
people’s items out of their home?” Coward replied that “No, [she] didn’t see him
inside of a house.”
¶33 The jury returned a verdict of guilty for Covington on burglary as
party to a crime as charged in counts one through five of the information. Prior to
sentencing, Covington filed a motion to vacate the verdict on the grounds that he
was denied his Sixth Amendment right to fully cross-examine Coward and that he
was denied his Fourteenth Amendment right to due process. The trial court denied
Covington’s motion and proceeded to sentencing. This appeal follows.
DISCUSSION
¶34 Covington argues that the trial court erred when it denied him a right
to confront Coward about her plea negotiations. The trial court explained that it
limited Covington’s questions based on the State’s representation that Coward
would get the same deal whether she testified or not; therefore, her plea agreement
was not relevant. Covington asserted that Coward’s mindset or belief that her
testimony may affect her plea agreement made it relevant for cross-examination
even if there was no formal consideration in her offer.
¶35 “Limiting cross-examination is limiting the introduction of
evidence.” State v. Rhodes, 2011 WI 73, ¶22, 336 Wis. 2d 64, 799 N.W.2d 850.
We will not disturb the trial court’s “decision to admit or exclude evidence unless
the [trial] court erroneously exercised its discretion.” Weborg v. Jenny, 2012 WI
14No. 2020AP5-CR
67, ¶41, 341 Wis. 2d 668, 816 N.W.2d 191. In reviewing a discretionary
determination, we consider “whether the [trial] court ‘reviewed the relevant facts;
applied a proper standard of law; and using a rational process, reached a
reasonable conclusion.’” Rhodes, 336 Wis. 2d 64, ¶22 (citation omitted). An
erroneous exercise of discretion by the trial court does not warrant a new trial if
the error was harmless. State v. Harris, 2008 WI 15, ¶85, 307 Wis. 2d 555, 745
N.W.2d 397.
¶36 “[A] reviewing court should reverse the [trial] court if it determines
that the discretionary decision to limit cross-examination did not rely on the
appropriate and applicable law.” Rhodes, 336 Wis. 2d 64, ¶25 (citing State v.
McCall, 202 Wis. 2d 29, 36 & n.5, 549 N.W.2d 418 (1996)). Here, the
“appropriate and applicable law” is the Confrontation Clause of the Sixth
Amendment. See Rhodes, 336 Wis. 2d 64, ¶25. “Whether the [trial] court relied
on the appropriate and applicable law is, by definition, a question of law that we
review de novo.” Id.¶37 “The Confrontation Clause of the Sixth Amendment guarantees the
right of an accused in a criminal prosecution ‘to be confronted with the witnesses
against him.’” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986).
“Confrontation means more than being allowed to confront the witness
physically”; the “primary interest” the confrontation clause secures “is the right of
cross-examination.” Davis v. Alaska, 415 U.S. 308, 315 (1974) (citation omitted).
The Confrontation Clause does not bar a trial court from imposing “reasonable
limits on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679.
“[T]he fundamental inquiry in deciding whether the right of confrontation was
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No. 2020AP5-CR
violated is whether the defendant had the opportunity for effective cross-
examination.” State v. Hoover, 2003 WI App 117, ¶21, 265 Wis. 2d 607, 666
N.W.2d 74.
¶38 Covington argues that the trial court denied him his right to
confrontation when it limited his cross-examination of Coward. The State argues
that the trial court properly exercised its discretion to exclude the evidence that
Covington wanted to elicit on cross-examination and Covington’s confrontation
rights were not violated. The State further argues that even if the trial court erred,
the error was harmless because Covington would have been convicted of the
burglaries even if trial counsel had cross-examined Coward on the details of her
plea offer.
¶39 For these purposes, we will assume without deciding that
Covington’s opportunities to cross-examine Coward about her plea negotiations
were improperly limited; nevertheless, we conclude that any violation constituted
harmless error.7 When this court analyzes violations of the Confrontation Clause,
we undertake a harmless error analysis, during which we consider several factors
“including the frequency of the error … the nature of the defense, the nature of the
State’s case, and the overall strength of the State’s case.” State v. Hale, 2005 WI
7, ¶61, 277 Wis. 2d 593, 691 N.W.2d 637. The reviewing court considers
“whether, assuming that the damaging potential of the cross-examination were
fully realized, [it] might nonetheless say that the error was harmless beyond a
7
We also conclude that Covington failed to file a reply brief and, therefore, failed to
refute the State’s arguments and thereby conceded the State’s arguments. See Charolais
Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979)
(holding that failure to refute an argument constitutes a concession). Nevertheless, in the interest
of being complete, we address the merits of Covington’s position.
16
No. 2020AP5-CR
reasonable doubt.” Van Arsdall, 475 U.S. at 684. The burden is on the
beneficiary of the error—here the State—to prove “beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.” Chapman v.
California, 386 U.S. 18, 24 (1967). The harmless error analysis presents a
question of law that this court reviews de novo. State v. Jackson, 2014 WI 4, ¶44,
352 Wis. 2d 249, 841 N.W.2d 791.
¶40 Here, the strength of the State’s case makes clear that any error was
harmless. The State presented overwhelming evidence that showed Covington’s
involvement in the five burglaries. See Hale, 277 Wis. 2d 593, ¶68. The jury
heard from seven law enforcement officers from three jurisdictions about their
investigation to identify who was committing these burglaries. Detective Keck’s
testimony explained how he identified Coward, and how that identification led
him to Covington and Covington’s Escalade. Investigator Stelter testified that the
police investigation led to a judge signing a warrant to place a GPS tracker on the
Escalade, which allowed them to catch Covington within thirty minutes of the
burglary on July 14. The jury heard from victims of the five burglaries, who each
testified about leaving their home unlocked while they were in their yards, and
how small, easy-to-carry valuables were taken.
¶41 Although Covington concedes that the evidence that he committed
the July 14 burglary was “considerable,” he argues that evidence—which included
first-hand police observations of Covington in the Escalade, using the July 14
burglary victim’s credit cards at a gas station, and being arrested with stolen credit
cards and jewelry a mere thirty minutes after the burglary was reported—is not
representative of the evidence regarding the other four burglaries. Covington
argues that the State only directly connected Covington to the other four burglaries
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No. 2020AP5-CR
through Coward’s testimony. This argument fails because the trial record refutes
his claim.
¶42 The evidence in the record supporting the other four burglaries was
circumstantial but sufficient. The State introduced police testimony that
connected Covington to the fraudulent use of credit cards stolen in the June 22
burglary on the same day in Green Bay at Walgreens, Walmart and a gas station,
the June 25 burglary on the same day at Macy’s and Victoria’s Secret, and the
July 8 burglary on the same day for three transactions at a gas station in
Milwaukee. Covington was captured on surveillance footage when he and
Coward used the credit cards stolen in the June 22, June 25, July 8, and July 14
burglaries. The police testified that Covington was with Coward when she
pawned jewelry stolen in the June 22, June 27, and July 8 burglaries. This
circumstantial evidence is hardly tenuous and was sufficient for the jury to find
Covington guilty of all five burglaries beyond a reasonable doubt. See State v.
Poellinger, 153 Wis. 2d 493, 501-02, 451 N.W.2d 752 (1990) (“It is well
established that a finding of guilt may rest upon evidence that is entirely
circumstantial and that circumstantial evidence is oftentimes stronger and more
satisfactory than direct evidence.”).
¶43 Our inquiry also considers the damaging potential if Covington’s
cross-examination of Coward on her plea negotiations were allowed to be fully
realized. See Van Arsdall, 475 U.S. at 684. To determine whether the limitation
on cross-examining Coward was harmless, we examine whether the verdict would
have been different if the jury had heard additional evidence about the negotiations
of Coward’s plea agreement. Here, the record shows that the jury knew that
Coward was charged with all five of these burglaries and had received a plea offer
from the State, but she stated that she was not getting any consideration for her
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No. 2020AP5-CR
testimony. She testified in detail about her participation in all the burglaries,
including driving the Escalade, using stolen credit cards, and pawning stolen
jewelry. The State further argues that all of the evidence that came in at trial
certainly allowed the jury to infer that Coward was culpable in committing the
burglaries and, therefore, biased because she would receive a more favorable plea
offer by testifying against Covington.
¶44 The State argues that based on all the evidence at trial that a more
extensive cross-examination of Coward about the negotiations of her plea
agreement would not have changed the jury verdict because Coward’s testimony
was thoroughly corroborated by the State’s evidence. It asserts that her testimony
that she used the credit cards Covington gave her at Macy’s and Victoria’s Secret
was corroborated by the video surveillance footage. Moreover, the video
surveillance footage of Coward and Covington using stolen credit cards was
admissible without Coward’s testimony and, therefore, her testimony was
cumulative. Similarly, the pawn shop records linked Coward to the jewelry stolen
in the burglaries and the surveillance footage showing Covington with her
regardless of her testimony. Further, the State argues that there is no doubt that
the jury would have found Coward’s testimony about the burglaries credible even
if trial counsel had elicited more details about the negotiations of her plea
agreement and would have found the evidence sufficient beyond a reasonable
doubt to find Covington guilty of the five burglaries.
¶45 We conclude it remains clear beyond a reasonable doubt that the jury
would have reached the same verdict even if Coward faced additional cross-
examination about the negotiations of her plea agreement. The record shows that
the “overall strength” of the State’s case rested on overwhelming evidence of
Covington’s guilt, from both direct and circumstantial evidence; furthermore,
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No. 2020AP5-CR
Coward’s testimony was thoroughly corroborated. See Hale, 277 Wis. 2d 593,
¶61. The State has shown that any possible error in limiting cross-examination did
not contribute to the verdict obtained. Therefore, any error by the trial court was
harmless.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)(5) (2019-20).
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