State v. Lanarius Travell Hodges ( 2022 )

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.
February 1, 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. 2020AP1031-CR Cir. Ct. No. 2013CF5055
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
LANARIUS TRAVELL HODGES,
DEFENDANT-APPELLANT.
APPEAL from a judgment and orders of the circuit court for
Milwaukee County: DENNIS P. MORONEY and GLENN H. YAMAHIRO,
Judges. Affirmed.
Before Brash, C.J., Donald, P.J., and Dugan, J.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP1031-CR
¶1 PER CURIAM. Lanarius T. Hodges appeals a judgment of
conviction entered after a jury trial.1 He also appeals an order denying his
postconviction motion and an order denying his motion for reconsideration.
Hodges contends that he is entitled to a new trial or an evidentiary hearing based
on newly discovered evidence and ineffective assistance of counsel. As discussed
below, we reject Hodges’s arguments and affirm.
BACKGROUND
¶2 Hodges was convicted after a jury trial of possession of a firearm by
a person adjudicated delinquent, first-degree recklessly endangering safety with
the use of a dangerous weapon, and discharging a firearm into a building
endangering safety. The convictions all stemmed from a daytime shooting that
took place in the Village of West Milwaukee.
¶3 According to the criminal complaint, on May 1, 2013, Hodges drove
Christopher Moss and Robert Fisher in a red Monte Carlo to an apartment
building, located at 3830 West Greenfield Avenue, to collect on a ten-dollar drug
debt from Roberto Quiles Jr. On one side of the 3830 building was another
apartment building located at 3904 West Greenfield Avenue. On the other side of
the 3830 building was a parking lot, which was adjacent to the New Elbow
Tavern, located at 3812 West Greenfield Avenue.
1
The Honorable Dennis P. Moroney presided over the jury trial. The Honorable
Glenn H. Yamahiro issued the order denying the postconviction motion and the motion for
reconsideration. We refer to Judge Moroney as the trial court and Judge Yamahiro as the
postconviction court.
2
No. 2020AP1031-CR
¶4 In the parking lot between the 3830 building and the New Elbow
Tavern, Moss got into an argument with Quiles Jr. According to one witness,
gunfire was exchanged between two unidentified individuals and the driver of the
red Monte Carlo, who was alleged to be Hodges. After the shooting, police
observed bullet damage to a car in the parking lot. G.V., a resident of the 3904
building, stated that he heard gunshots and then saw a bullet hole and a bullet
fragment inside his apartment.
¶5 During Hodges’s trial, the jury was shown video surveillance
footage from the New Elbow Tavern. The footage, which was recorded in broad
daylight and is in color, shows a red Monte Carlo pulling up to the side of the
street. Moss, wearing a white t-shirt, exits the passenger side of the car and meets
up with Quiles Jr. and Roberto Quiles Sr. in the parking lot. Subsequently, the
driver, alleged to be Hodges, reverses the Monte Carlo, gets out of the car, fires
multiple shots in the direction of the parking lot and the 3830 and 3904 buildings,
and then runs away. Moss, who appears to be injured, drives the car away. The
State argued that the video footage clearly shows that the person who exited from
the driver’s side of the red Monte Carlo and fired multiple shots was Hodges.
¶6 At trial, in addition to the video, the State presented circumstantial
evidence linking Hodges to the shooting. An eyewitness wrote down the license
plate of the red Monte Carlo, which the police traced to the owner, Telena Carter.
Carter told police that Hodges was her boyfriend and that on May 1, 2013, Hodges
drove her Monte Carlo and dropped her off around 4:00 p.m. at a Pick ‘N Save,
where she works. Hodges was supposed to pick her up at 10:00 p.m. that evening,
but he never showed up.
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No. 2020AP1031-CR
¶7 The following day, Carter called the police and said that she came
home and found a note from Hodges advising her as to the location of the Monte
Carlo. Police located and took custody of the vehicle to process it for evidence. A
print of Hodges’s right palm was found on the exterior of the vehicle.
¶8 Subsequently, on July 3, 2013, police stopped the same Monte
Carlo, which had been painted gold. At the time the police stopped the car, there
were four occupants in the car, including Hodges, who was driving. A gun was
found under the passenger seat.2
¶9 Police obtained the phone records corresponding to Hodges’s cell
phone number. Sergeant Brian Murphy testified that cell tower information was
consistent with Hodges’s phone being in the area of Pick ‘N Save around
4:00 p.m. and in the area of the shooting around 6:00 p.m.3
¶10 After the trial, Hodges was sentenced to a total of thirteen years of
initial confinement and eleven years of extended supervision.
Postconviction Proceedings
¶11 Hodges filed a postconviction motion seeking a new trial based on
newly discovered evidence and ineffective assistance of counsel.4 In support of
2
Based on the discovery of the firearm in the Monte Carlo on July 3, 2013, Hodges was
charged with possession of a firearm by a person adjudicated delinquent. The jury returned a not
guilty verdict on this charge.
3
At trial, the State also attempted to prove that Hodges conspired to commit perjury by
playing recordings of calls made while Hodges was incarcerated; however, due to technical
issues, the State moved to dismiss the perjury charges, which the court granted.
4
The postconviction motion also sought a new trial in the interest of justice and
challenged the use of the pattern jury instruction, WIS JI-CRIMINAL 140. These challenges are
not renewed on appeal.
4
No. 2020AP1031-CR
his motion, Hodges filed a statement from an alleged alibi witness, Raquel
Hollingsworth. Hollingsworth stated that she is the hairstylist for Deidrah Jones,
the mother of Hodges’s children. Hollingsworth averred that on May 1, 2013, at
6:00 p.m., she was at Jones’s house located at 35th and Greenfield. Hollingsworth
recalled Jones going down the stairs to open the door for Hodges, who was
wearing jeans, a red t-shirt with a Nike logo, and red shoes. According to
Hollingsworth, Hodges “was not there too long before his ride came back blowing
the horn. Th[e]n [h]e kissed his kids and left[.]”
¶12 Hodges also attached statements from three purported eyewitnesses,
Joshua Buford, Ronald Griffin, and Will Velez, who all alleged that Hodges was
not the driver/shooter.
¶13 The first alleged eyewitness, Joshua Buford, stated that he had
received a letter at Columbia Correctional Institution from Hodges, who was
incarcerated at the New Lisbon Correctional Institution. The letter stated that
Hodges was “looking for [Buford] to help clear [Hodges’s] name regarding the
shooting that took place on 38th and [G]reenfield.” Buford asserted that he was
present during the shooting. According to Buford, Hodges was not the person
driving the red Monte Carlo. Hodges argued that Buford’s statements were
reliable based on a police report in which Buford told the sergeant that he had seen
the driver/shooter, but did not recognize him.5
5
In addition, Hodges filed a report by a defense investigator who interviewed Buford.
The report noted that Buford described the driver of the red car as an “older guy, middle-aged”
with “long hair that looked like dreads or braids.”
5
No. 2020AP1031-CR
¶14 The second alleged eyewitness, Ronald Griffin, an inmate at the
New Lisbon Correctional Institution, averred that he was at 38th and Greenfield
on the date of the shooting and saw Quiles Jr. and Quiles Sr. speaking to the
passenger of the red car. Griffin recognized the driver of the red car as his weed
supplier “Julien.” When Griffin saw two males approach from an alley, he ran.
As he ran, he heard shots being fired. About five minutes later, Griffin saw
“Julien” jog by with a gun. Griffin stated that he learned that Hodges was in
prison for this shooting after meeting him in the prison law library.
¶15 The third alleged eyewitness, Will Velez, who is related to Quiles Jr.
and Quiles Sr., stated that he was present during the shooting. Velez averred that
he got a “real good look” at the driver of the red Monte Carlo car and was positive
it was not Hodges. Velez stated that he had known Hodges for over ten years.
Velez explained that he did not stay at the scene of the shooting because he did not
want to be harassed by the police. Velez stated that he spoke to private
investigators, as well as lawyers on behalf of Hodges, and he was told that he
would be on the witness list to testify. Velez stated that he went to Hodges’s trial
to testify, but Hodges’s lawyer did not let anyone testify. Hodges noted that Velez
was identified in the police reports and listed on the defense’s witness list.6
¶16 After ordering briefing, the postconviction court denied the motion
without an evidentiary hearing. The court stated that the video in conjunction with
the other circumstantial evidence tying the defendant to the shooting rendered the
statements submitted by Hodges “of little consequence.” The court concluded that
6
The defense’s witness list was filed by Hodges’s first attorney. Hodges’s second
attorney, who represented Hodges at trial, stated on the record that he was “satisfied” with the
list.
6
No. 2020AP1031-CR
“[t]aking the statements of Buford, [Griffin], Hollingsworth, and Velez at face
value, there is not a reasonable probability that a jury viewing the evidence
adduced at trial and the ‘new’ evidence would have … acquit[ted] Hodges.” In
addition, the court concluded that Hodges was not prejudiced by counsel’s failure
to pursue the alleged witnesses.
¶17 Subsequently, Hodges filed a motion for reconsideration. Hodges’s
arguments included that the postconviction decision erroneously stated that there
were only two people in the Monte Carlo when in fact there were three people;
that the statements from the three alleged eyewitnesses would refute that Hodges
was present at the scene of the shooting; and that the cell phone evidence only
showed Hodges’s phone’s proximity to a cell tower and its location in a pie-
shaped area at least one-mile long.
¶18 In an affidavit filed with the motion for reconsideration, Hodges
admitted that on May 1, 2013, he received permission to use Carter’s red Monte
Carlo. After dropping Carter off at work, Hodges picked up Moss, Fisher, and a
friend of Fisher’s. Around 5:30 or 6:00 p.m., he arrived at his children’s house.
Moss asked Hodges to use the car to go down the street. Hodges agreed to let
Moss, Fisher, and Fisher’s friend use the car, but told them to hurry back. Ten to
twenty-five minutes later, Moss and Fisher returned blowing the horn repeatedly.
Moss was bleeding from his face saying that “he thinks he’s been shot.” Hodges
switched spots with Moss and drove to the hospital. Hodges further alleged that
he conveyed the above information to his trial attorney and asked him to pursue an
alibi defense.
¶19 After additional briefing, the postconviction court denied the motion
for reconsideration. The court indicated that its misstatement regarding the
7
No. 2020AP1031-CR
number of people in the red Monte Carlo was “of absolutely no consequence to the
outcome because no one has argued then or now that the defendant was the third
individual in the car.” The court reiterated that Hodges’s proffered affidavits
would not have created a reasonable probability of a different result. The court
also stated it “agrees with the State that this would have been ‘an absurd defense,
certainly one that no reasonable jury would believe.’”
¶20 Hodges filed a notice of appeal from the order denying his
postconviction motion and the order denying his motion for reconsideration.
Additional relevant facts are referenced below.
DISCUSSION
I. Newly Discovered Evidence
¶21 On appeal, Hodges argues that the statements from Buford, Griffin,
and Hollingsworth constitute newly discovered evidence. We disagree.
¶22 To vacate a judgment based on newly discovered evidence, the
defendant must provide sufficient evidence to establish that his or her conviction is
a manifest injustice. State v. McAlister, 2018 WI 34, ¶31, 380 Wis. 2d 684, 911
N.W.2d 77. To obtain an evidentiary hearing, a defendant must show:
specific facts that are sufficient by clear and convincing
proof, when considered in the context of the record as a
whole, that: (1) the evidence was discovered after
conviction; (2) the defendant was not negligent in seeking
the evidence; (3) the evidence is material to an issue in the
case; and (4) the evidence is not merely cumulative.
Id.8
No. 2020AP1031-CR
¶23 If a defendant satisfies his burden on all four of these elements, the
circuit court must then determine whether a reasonable probability exists that a
different result would be reached at trial. State v. Avery, 2013 WI 13, ¶25, 345
Wis. 2d 407, 826 N.W.2d 60. “A reasonable probability of a different result exists
if there is a reasonable probability that a jury, looking at both the old and the new
evidence, would have a reasonable doubt as to the defendant’s guilt.” Id.¶24 When a defendant moves for a new trial on the basis of newly
discovered evidence, the circuit court must hold an evidentiary hearing only if “the
motion on its face alleges sufficient material facts that, if true, would entitle the
defendant to relief.” State v. Love, 2005 WI 116, ¶26, 284 Wis. 2d 111, 700
N.W.2d 62 (citation omitted). This is a question of law we review de novo “based
on the specific factual allegations made and the record as a whole.” McAlister,
380 Wis. 2d 684, ¶25. “However, if the motion does not raise facts sufficient to
entitle the movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” State v. Allen, 2004 WI 106,
¶9, 274 Wis. 2d 568, 682 N.W.2d 433.
¶25 To start, the statements from Buford do not satisfy the requirements
for newly discovered evidence. As Hodges observes, Buford was identified as an
eyewitness in the discovery. Additionally, Hodges argues that he specifically
asked trial counsel to investigate Buford. To constitute newly discovered
evidence, the evidence must have come to the attention of the parties after the
conviction. See McAlister, 380 Wis. 2d 684, ¶31. Thus, the statements from
Buford cannot be considered newly discovered evidence.
9
No. 2020AP1031-CR
¶26 Likewise, Hollingsworth’s statements are not newly discovered
evidence. Hollingsworth alleges that she was with Hodges at Jones’s house at the
time of the shooting. If this is true, then Hodges would have known about
Hollingsworth prior to trial. Thus, Hollingsworth’s statements cannot be
considered newly discovered evidence either. See id.¶27 In regards to Griffin’s statements, even if we assume that they
constitute newly discovered evidence, we agree with the postconviction court that
there is not a reasonable probability that a jury looking at both the old evidence
and the new evidence would have a reasonable doubt as to Hodges’s guilt. 7 See
Avery, 345 Wis. 2d 407, ¶25.
¶28 As the State observes, Griffin admits that he did not actually witness
the shooting. Griffin ran away before the shooting happened. Moreover, we agree
with the postconviction court that the evidence presented at trial was
“overwhelming.” The evidence included a color video that showed footage of the
driver of the red Monte Carlo exiting the car and firing multiple shots in broad
daylight.
¶29 The State also presented other evidence linking Hodges to the
shooting. An eyewitness to the shooting wrote down the license plate of the red
Monte Carlo, which the police traced to the owner, Telena Carter. Carter, who
7
On appeal, Hodges contends that the postconviction court used an erroneous legal
standard and made several factual errors in its decision. These arguments, however, were
presented in Hodges’s motion for reconsideration. The postconviction court reviewed the motion
for reconsideration and again found that there was not a reasonable probability of a different
result. Moreover, as discussed below, we agree with the postconviction court’s conclusion that
there is not a reasonable probability that a jury looking at both the old evidence and the new
evidence would have a reasonable doubt as to Hodges’s guilt.
10
No. 2020AP1031-CR
said that Hodges was her boyfriend, told police that Hodges drove her Monte
Carlo on May 1, 2013. The following day after speaking to police, Carter stated
that she came home and found a note from Hodges advising her as to the location
of the Monte Carlo. Police located the vehicle and found a print of Hodges’s right
palm on the exterior of the vehicle. Moreover, approximately two months after
the shooting, the same Monte Carlo was stopped and Hodges was driving.
Notably, at the time of the stop, the Monte Carlo had been painted gold, reflecting
consciousness of guilt.
¶30 In addition, police also obtained the phone records corresponding to
Hodges’s cell phone number and the cell tower information was consistent with
Hodges being in the area of the shooting at the time of the shooting. Thus, we
agree with the postconviction court that there is not a reasonable probability that a
jury looking at both the old evidence and the new evidence would have a
reasonable doubt as to Hodges’s guilt. Id. Accordingly, the postconviction court
properly denied Hodges’s newly discovered evidence claim without a hearing.
II. Ineffective Assistance of Counsel
¶31 Hodges next contends that trial counsel was ineffective for failing to
investigate and call Hollingsworth, Griffin, Velez, and Buford. Again, we
disagree.
¶32 To prevail on a claim of ineffective assistance of counsel, the
defendant must prove both that counsel’s performance was deficient and that the
defendant was prejudiced by the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a 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. A reasonable
11
No. 2020AP1031-CR
probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. If the court concludes that the defendant has not proven one prong of
this test, it need not address the other. Id. at 697.
¶33 As with a newly discovered evidence claim, a circuit court is
required to hold an evidentiary hearing on an ineffective assistance of counsel
claim only if the defendant has alleged “sufficient material facts that, if true,
would entitle the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14. Whether a
defendant’s motion has alleged sufficient material facts entitling the defendant to
relief is a question of law that we review de novo. Id., ¶9. If the postconviction
motion “does not raise facts sufficient to entitle the movant to relief, or presents
only conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the discretion to grant or
deny a hearing.” Id.
¶34 Here, the postconviction court properly denied Hodges’s ineffective
assistance of counsel claims without an evidentiary hearing. First, Hodges failed
to explain in his postconviction motion or his motion for reconsideration how trial
counsel would have known about Griffin or Hollingsworth. See id., ¶23 (stating
that a defendant must allege the “five ‘w’s’ and one ‘h’; that is, who, what, where,
when, why, and how” within the four corners of a postconviction motion).
Hodges did not allege that trial counsel should have known about Griffin or
Hollingsworth because they were identified in the police reports. Nor did Hodges
specifically allege that he told trial counsel about Griffin or Hollingsworth. In his
postconviction motion, Hodges simply stated that he told trial counsel about “his
alibi witnesses and other potential identification witnesses[.]” Hodges did not
provide the names of the witnesses. See id. A lawyer cannot be ineffective for
12
No. 2020AP1031-CR
failing to pursue something that the defendant knew, but did not reveal. See State
v. Eison, 2011 WI App 52, ¶21, 332 Wis. 2d 331, 797 N.W.2d 890.
¶35 Second, in regards to Buford and Velez, even if we assume that trial
counsel performed deficiently, Hodges has failed to establish that he was
prejudiced. As discussed in detail above, given the color video of the shooting,
the evidence connecting Hodges to the Monte Carlo, and the cell tower evidence,
trial counsel’s failure to call Buford and Velez was not sufficient to undermine
confidence in the outcome of the trial. See Strickland, 466 U.S. at 694.
¶36 Finally, Hodges argues that trial counsel was ineffective for failing
to impeach or rebut testimony from Sergeant Murphy that Hodges’s right palm
print was found on the driver’s side back window of the Monte Carlo rather than
the passenger’s side.
¶37 As the State argues, however, the significance of the palm print was
that it connected Hodges to the red Monte Carlo; the location of the print was
inconsequential. In closing, the prosecutor argued:
[Sergeant Murphy] obtains the right palm print of the
defendant on the outside of the back window. That is
where the defendant was during this video. I don’t know if
the palm print was placed then, before, after, but it’s on
that vehicle and that is strong circumstantial evidence to
not only support the video, but stands alone as connecting
him to the vehicle in addition, in this case.
(Emphasis added). Thus, even if trial counsel was deficient in this respect,
Hodges has failed to establish prejudice. The location of the print was
inconsequential in the context of the overwhelming case that the State built against
Hodges.
13
No. 2020AP1031-CR
¶38 Therefore, we conclude that the postconviction court properly denied
Hodges’s postconviction motion and motion for reconsideration without an
evidentiary hearing.
By the Court.—Judgment and orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).
14