State v. Ronald Henry Griffin ( 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 22, 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. 2020AP1750-CR Cir. Ct. No. 2013CF5083
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RONALD HENRY GRIFFIN,
DEFENDANT-APPELLANT.
APPEAL from a judgment and orders of the circuit court for
Milwaukee County: STEPHANIE ROTHSTEIN, Judge. Affirmed.
Before Donald, P.J., Dugan and White, JJ.
¶1 WHITE, J. Ronald Henry Griffin, pro se, appeals his judgment of
conviction entered upon a jury verdict for first-degree sexual assault, forcibly
aiding and abetting; second-degree sexual assault; and attempted second-degree
sexual assault. He also appeals the circuit court orders denying his postconviction
No. 2020AP1750-CR
motion and his motion for reconsideration, both without a hearing. Griffin argues
that the State failed to turn over Brady1 material, trial counsel was ineffective, and
the trial court erred when it admitted certain evidence. We reject his arguments,
and accordingly, we affirm.
BACKGROUND
¶2 This case arises out of an allegation that Griffin and a co-actor,
Ricky Taylor, sexually assaulted T.F., a woman who visited Taylor’s apartment in
South Milwaukee on October 30, 2013. According to the criminal complaint,
Taylor invited T.F. to visit him and when she arrived, Griffin was in the apartment
as well. Taylor forced T.F. to perform fellatio on him and then Griffin removed
T.F.’s pants and assaulted her through anal intercourse. After T.F. struggled,
Taylor left and Griffin attempted to have vaginal intercourse with T.F. When he
did not succeed, he again assaulted her anally. T.F. punched Griffin in the head
and eventually pushed him into a wall. T.F. jumped up, grabbed her clothes and
fled the apartment.
¶3 Several days later, T.F. complained to the South Milwaukee Police
Department about the assaults. Griffin and Taylor were arrested at Taylor’s
apartment building. They were each charged with counts of first-degree and
second-degree sexual assault and Griffin was charged with attempted second-
degree sexual assault.
¶4 In May 2014, Taylor entered a plea to resolve his charges. Taylor
pled guilty to third-degree sexual assault (amended from the count for second-
1
Brady v. Maryland, 373 U.S. 83, 87 (1963).
2
No. 2020AP1750-CR
degree sexual assault), and his charge for first-degree sexual assault, forcibly
aiding and abetting, was dismissed outright. In exchange, Taylor agreed to serve
as a witness against Griffin.
¶5 The case against Griffin proceeded to trial in December 2014. T.F.
testified about meeting Taylor and conversing with him by telephone and text over
a two month span of time. When T.F. was in Taylor’s neighborhood on
October 30, 2013, Taylor invited her to stop by his apartment. She took her boots
off when she got inside the apartment because it “had been snowing and [she]
didn’t want to track that through the house.” Taylor asked T.F. if she wanted to
see a photo in a bedroom. She agreed, and while T.F. looked at the photo, Taylor
took off all of his clothing except his boxer shorts. She told Taylor, “No. That’s
not all happening tonight.” He shut the bedroom door and then Taylor forced
T.F.’s head down and forced her to give penis-to-mouth intercourse. She said he
forced his penis into her mouth and into her throat “with force” and she “couldn’t
speak.”
¶6 T.F. further testified that Taylor then told Griffin to come inside and
told T.F. that Griffin was going to “hit me from the back,” which she interpreted to
mean he would have anal intercourse with her. T.F. fought against Taylor’s hold.
Griffin then came in and pulled off T.F.’s pants and underwear and “inserted his
penis into my butt.” T.F. “freak[ed] out” and Griffin fell against the bed; T.F.
started kicking Taylor and he got “really angry” and “got up, turned off the lights,
closed the door, and left” T.F. alone in the room with Griffin. Griffin then tried,
but failed, to insert his penis into T.F.’s vagina. T.F. got a hand free and began to
punch Griffin in the head. Griffin got very angry, “grabbed my arms and put them
down very hard. And then he shot his penis very hard into my butt, very hard, and
it hurt and I was trying to get away and it took my breath away.” T.F. then
3
No. 2020AP1750-CR
stopped fighting Griffin, jumped off the bed, grabbed her pants and then went to
the dining room to put on her boots. T.F. left the apartment crying. She testified
that the visit and assaults all occurred within forty minutes.
¶7 T.F. testified that she met with her counselor and decided to report
the October 30, 2013 assault. On the morning of November 3, 2013—four days
after the assault—T.F. planned to report the assault to the police; however, before
she went to the police station, Taylor called T.F. and asked her to take him to the
grocery store. T.F. said she would call him later and then went to the police
station. T.F. met with Officer David Kozlowski, who interviewed T.F. and then
arranged for T.F. to make a one-party consent recorded call to Taylor to see if he
would say what he did. The State then played the recording of the phone call for
the jury, and T.F. identified her and Taylor’s voices in the recording.
¶8 T.F. testified that she told Officer Kozlowski that prior to going to
the police, she found a photo of Griffin on a “social media site.” 2 T.F. further
described identifying both Taylor and Griffin in photo arrays with a police officer.
¶9 T.F. testified that after meeting with police, she went to the Aurora
Sinai Medical Center Sexual Assault Treatment Center for an examination.
T.F. reported that she had bruises on her hands, arms and legs; and both her throat
and her anus were very sore.
¶10 Prior to the State calling Taylor as a witness, trial counsel objected
to the admission of two letters purportedly from Griffin to Taylor. The court
2
The record is clear that the jury was not informed about which site T.F. used; however,
relevant to this appeal, the site was the Wisconsin Department of Corrections Sex Offender
Registry.
4
No. 2020AP1750-CR
considered the objection untimely because the letters had been disclosed before
trial and Griffin had not objected.
¶11 Taylor testified that T.F. came over to his apartment at his invitation
and he thought it was a “consensual situation” when T.F. came into the bedroom
to look at a photo, and Taylor then turned the lights off and laid down on the bed.
Taylor then using one hand “grabbed the back of her head and pulled it toward my
waist and put my penis in her mouth.” Despite noticing that T.F. tried to pull her
mouth off of his penis, Taylor continued to move her head up and down. Then
Griffin knocked on the door and asked to come in. Griffin came in and then
“snatched her jeans from behind and started to fondle her.” T.F. “pushed herself
forward really hard and told [Griffin] to stop” and she was able to pull “her head
away.” T.F. “moved to her side really hard and kind of pushed [Taylor] toward
the edge of the bed. [He] rolled off and got [his] clothes and left out the room and
closed the door[.]” Several minutes later, he returned and opened the bedroom
door where he saw Griffin “being forceful when he was holding [T.F.] down with
his forearm.” He observed it was “absolutely not” consensual. Taylor closed the
bedroom door. He later saw the door open “hard and fast” and T.F. came out
putting her clothes on quickly, she swore at Taylor and told him to lose her
number.
¶12 Taylor testified that on the evening of the assault and several times
in subsequent days, Griffin told him that he hoped he would not be charged with
sexual assault. Four days after the assault, Taylor called T.F. to ask her to take
him to the grocery store. The State then played, for a second time, the recording
of the phone call that T.F. made to Taylor; Taylor identified his own and T.F.’s
voices.
5
No. 2020AP1750-CR
¶13 Taylor testified that after he was arrested and charged, he decided to
cooperate with the State and testify against Griffin as part of a plea agreement.
After he entered his guilty plea, Taylor and counsel met with Officer Kozlowski
for a debriefing interview; Taylor then disclosed two letters he had received from
Griffin after the incident with T.F. He testified that he received one letter directly
from Griffin’s hand and he watched the second letter move from Griffin’s hand to
a third-party, and finally to Taylor. Taylor read the first letter from Griffin aloud,
part of which stated that they needed to “lean back and ride it out” and to request a
speedy trial. Taylor then read the second letter from Griffin aloud, part of which
stated:
I talked to my lawyer the other day, and he let me listen to
the recorded phone call. He said that there’s a lot that I has
got to play with, but he doesn’t want the jury hearing it ….
He also said it would be better to have separate trials,
because that could mean that she would have to testify
twice and it would be better if we withdrew the speedy trial
because all this shit is still fresh in her mind …. We need
to be on the same page.
¶14 The State then called Officer Kozlowski. When the State asked him
to review the procedures to put together a photo array, the trial court asked if
“there [was] any challenge to the manner in which this array was put together?”
Trial counsel said no and agreed that the defense was “prepared to stipulate that
the proper procedures were used here.” Officer Kozlowski explained that T.F.
identified Taylor and Griffin in the photo arrays as her assailants.
¶15 The State called Officer David Stratton, who testified that while T.F.
made the recorded phone call to Taylor on November 3, 2013, from the police
station, he and another police officer waited outside of Taylor’s apartment.
Through an open window, Officer Stratton could hear that a man was speaking on
the telephone at the time, and the officer had been told T.F. called Taylor. He
6
No. 2020AP1750-CR
clarified that he could not hear the contents of the conversation. Officer Stratton
arrested Taylor and then Griffin, conducted a safety sweep of the apartment, and
then conducted a search of the apartment after the search warrant was issued.
¶16 The State called Allison Lopez, the Sexual Assault Nurse Examiner
(SANE) at Aurora Sinai Medical Center, who examined T.F. and prepared a report
of her findings. The nurse examined T.F. for injuries to her vagina and anus, and
took swabs for DNA.3 She documented bruising on T.F.’s body on a chart and
with photographs. She documented injuries to T.F.’s mouth and throat, which
showed small hemorrhages under the surface of the skin, which she testified,
“most likely … occurs from some type of blunt force trauma to the area.”
¶17 The jury returned guilty verdicts on all three counts. In February
2015, the trial court sentenced Griffin to a total term of thirty-six years, divided as
twenty-one years of initial confinement and fifteen years of extended supervision.
¶18 Griffin filed the underlying pro se motion for postconviction relief
pursuant to WIS. STAT. § 809.30 (2019-20),4 in April 2020. After ordering
briefing, the trial court denied Griffin’s motion in September 2020. Griffin moved
for reconsideration, which the trial court denied in a second order.
¶19 Griffin appeals.
3
An analyst in the Wisconsin State Crime Lab testified that the swabs either detected no
male DNA or insufficient male DNA to develop a useful DNA profile to compare against Taylor
or Griffin.
4
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
7
No. 2020AP1750-CR
DISCUSSION
¶20 Griffin makes three complaints. First, Griffin argues that the State
withheld Brady material by not providing the defense with a copy of the photo that
T.F. found online on the Wisconsin Department of Corrections Sex Offender
Registry (hereinafter Registry photo). Second, Griffin argues that trial counsel
provided ineffective assistance of counsel by not pursuing weather reports from
October 30, 2013, to impeach T.F.’s testimony that she wanted to avoid tracking
snow inside the apartment. Finally, Griffin contends that the trial court erred
when it admitted the letters Taylor claimed he received from Griffin because there
was insufficient evidence to authenticate that Griffin wrote them.
¶21 Griffin seeks, at a minimum, an evidentiary hearing on his claims, a
request denied by the trial court. “A hearing on a postconviction motion is
required only when the movant states sufficient material facts that, if true, would
entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d
568, 682 N.W.2d 433. “Whether a motion alleges facts which, if true, would
entitle a defendant to relief is a question of law that we review de novo.” State v.
Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). “[I]f 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 trial court has discretion to deny a postconviction motion
without a hearing. See Allen, 274 Wis. 2d 568, ¶9. We review the trial court’s
decision to deny an evidentiary hearing under the erroneous exercise of discretion
standard. See id.8
No. 2020AP1750-CR
I. Brady violation
¶22 Griffin argues that the State committed a due process violation by
not properly disclosing the Registry photo of Griffin that T.F. brought to the police
to identify her assailant when she complained about the sexual assaults. Griffin
first argues that the photograph could not have been found in the way T.F.
described; therefore, the preservation of the original photo would have allowed
Griffin to impeach her testimony. Next, he argues that because the photograph
could not have been found, there is an inference to be made that T.F. only
identified Griffin due to police suggestiveness. Finally, Griffin argues that
without the original photograph, he had no way to challenge the admissibility of
the photo array procedures, because he theorizes, in essence, that the photo from
the Registry and in the police photo array might have been the same image.
¶23 “[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence that
impeaches or affects the credibility of a witness also “falls within this general
rule.” Giglio v. United States, 405 U.S. 150, 154 (1972). “[T]he three
prerequisites for a Brady violation [are] as follows: ‘The evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.’” State v. Kevin Harris, 2004
WI 64, ¶15, 272 Wis. 2d 80, 680 N.W.2d 737 (quoting Strickler v. Greene, 527
U.S. 263, 281-82 (1999)). “[A] Brady violation entails prejudice to the accused
and necessarily entitles the defendant to a new trial.” State v. Ronell Harris, 2008
WI 15, ¶62, 307 Wis. 2d 555, 745 N.W.2d 397. This court “independently
9
No. 2020AP1750-CR
review[s] whether a due process violation has occurred, but we accept the trial
court’s findings of historical fact unless clearly erroneous.” State v. Wayerski,
2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468.
¶24 We begin with Griffin’s argument that T.F. could not have found the
Registry photo in the way described in the record.5 Griffin asserts that the
Registry photo was favorable evidence because he would use it to impeach T.F.’s
credibility. He contends that T.F. could not have found his photo on the Registry
by searching for his first name and his zip code, therefore, the existence of the
photo would impeach her testimony. Griffin’s postconviction motion was
supported by two exhibits and an affidavit purporting to show that a person
searching on the Registry for the first name “Ron” and the South Milwaukee zip
code would not be able to find him. In response, the State proffered an affidavit
from the Director of the Registry, who attested that in 2013, a person searching the
Registry could search by zip code, see all of the offenders, and then “find in that
list all persons with a particular first name.”
¶25 Griffin draws a distinction without a difference when he asserts that
he could impeach T.F.’s identification of him by showing that the Registry could
not be searched by first name and zip code in one step. However, the record
reflects that the same search could easily be accomplished in two steps. T.F. did
not testify about how she searched for Griffin—the characterization of her search
5
According to the criminal complaint, T.F. told Officer Kozlowski that “[a]fter the
incident, on a hunch, and using the name Ron and the South Milwaukee zip code, she went onto
the sex offender website, and immediately recognized the defendant Ron Griffin’s photo as being
the second man at Taylor’s residence on October 30, 2013.” At the preliminary hearing, Officer
Stratton testified that “[T.F.] had looked into the Wisconsin database on sexual offenders and put
in the–apparently put in the South Milwaukee zip code and looked up the name Ron and was able
to identify a photograph of Ronald Griffin from that web-site.”
10
No. 2020AP1750-CR
found in the criminal complaint and in Officer Stratton’s testimony at the
preliminary hearing were based on second-hand sources and were
characterizations of the search by someone other than T.F. She did not testify that
she accomplished her search of the Registry for Griffin in one step. Although the
trial court limited the parties from eliciting that the photo came from the Registry,
Griffin trial counsel did not request to question T.F. about her search
methodology, even within those confines, and did not cross-examine her about the
issue at all.6 Griffin has not established that the Registry photo would impeach
T.F.’s credibility. Therefore, we conclude that Griffin has not shown that the
Registry photo was favorable evidence.
¶26 Griffin next contends that without the original Registry photo T.F.
brought to the police, he could not challenge the photo array procedures and the
possibility that the photo used in the police photo array was the same as the
Registry photo. However, the record reflects that Griffin expressly waived a
challenge to the photo array procedures at trial. “[W]aiver is the intentional
relinquishment or abandonment of a known right.” State v. Ndina, 2009 WI 21,
¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting United States v. Olano, 507 U.S.
725, 733 (1993)). Griffin, through trial counsel, stipulated that he was not
6
During the May 2014 pretrial hearing when the trial court considered Griffin’s motion
in limine to suppress evidence that T.F. found Griffin’s photo on the Registry, the court
questioned the State if it “intend[ed] to attempt to use in your case in-chief information that the
victim researched the defendant and found his identity via the official state sex offender registry
site?” The State responded “No.” It stated an intention to “dance around that issue” and ask T.F.
if she found the picture of Griffin “on the internet.” The trial court asked Griffin’s attorney (not
the same counsel who represented Griffin at trial) if he objected. The attorney answered, “No.
Clearly the jury can’t hear that he is on the sex offender registry for purposes of this crime.” The
trial court then stated they were “all in agreement” that the State was not going to seek “to use
that specific information” and tasked the State with instructing T.F. about the “limitations” of her
description of where she found the photo.
11
No. 2020AP1750-CR
challenging the photo array procedure. Because Griffin has waived this issue, we
need not address his argument that because of flaws in the photo array procedure it
is reasonable to infer that T.F.’s identification of Griffin was influenced by police
suggestion.7
¶27 Even if we were to address Griffin’s challenge to the photo array
procedure on the merits, Griffin only offers conclusory arguments that the photo
array was problematic because the Registry photo was not produced by the State. 8
His burden is to set forth the “who, what, where, why, and how” to demonstrate
with “sufficient material facts for [this] reviewing court[] to meaningfully assess”
his claim. Allen, 274 Wis. 2d 568, ¶23. Griffin fails to explain how the original
photo would allow him to challenge T.F.’s identification in the photo array. He
7
Further, we note that Griffin has not alleged ineffective assistance of counsel for
waiving the photo array procedures; therefore, we will not analyze the issue under that standard.
“We do not develop arguments for parties.” State v. Stewart, 2018 WI App 41, ¶29, 383 Wis. 2d
546, 916 N.W.2d 188.
8
At the preliminary hearing, Griffin’s initial attorney, who withdrew and was replaced
before trial, questioned Officer Stratton about the photos.
[GRIFFIN’S INITIAL ATTORNEY:] Do you happen
to know the photo that was used in the photo array is the same
photo from the sex offender registry?
[OFFICER STRATTON:] I can’t say for certain.
But we—The Officer that is putting those photo arrays
together was taking them out of South Milwaukee Police
Department booking photos. So I would say, likely not.
[GRIFFIN’S INITIAL ATTORNEY:] Okay.
[OFFICER STRATTON:] It would have been one of
our booking photos.
Further, Officer Stratton testified that he was not involved in the photo array or interviewing T.F.
at any point in the investigation.
12
No. 2020AP1750-CR
fails to explain how the police unduly influenced T.F.’s identification of Griffin at
the police station. He fails to specifically allege that the Registry photo was used
in the photo array; instead, he asserts that he needs a hearing to resolve the issue
because Officer Stratton was not “certain” that the images were different. Further,
the record reflects that Officer Stratton immediately stated that the photo array
would have been taken from South Milwaukee Police Department booking photos.
At trial, Griffin’s trial counsel did not ask Officer Kozlowski about the source of
the photos for the photo array or whether the photo T.F. brought to the station was
the same image as the one used in the photo array. Griffin only offers speculation
that having the original photograph would allow him to challenge the photo array
procedure and T.F.’s identification of Griffin. Ultimately, Griffin has not alleged
sufficient material facts to convince us to order an evidentiary hearing despite the
issue being waived.
¶28 We conclude that Griffin has not shown that the Registry photo was
favorable to the defense. Therefore, we conclude that he has not shown that a
Brady violation occurred. Griffin’s arguments are conclusory. He has failed to
demonstrate that an evidentiary hearing is required to investigate his claims.
Accordingly, the trial court did not err when it denied his postconviction motion
without a hearing. See Allen, 274 Wis. 2d 568, ¶23.
II. Ineffective assistance of counsel
¶29 Griffin contends that trial counsel provided ineffective assistance of
counsel because counsel did not pursue weather data for October 30, 2013, to
impeach T.F.’s testimony that she took her boots off when she arrived at the
apartment because of snow. The record reflects that trial counsel did cross-
13
No. 2020AP1750-CR
examine T.F. about the weather and her removal of her boots. Griffin seeks a
Machner9 hearing to examine this claim.
¶30 To succeed on his postconviction motion, Griffin must allege
sufficient material facts to satisfy the familiar two-prong inquiry to show
ineffective assistance of counsel: deficiency and prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a
defendant must show specific acts or omissions of counsel that are “outside the
wide range of professionally competent assistance.” Id. at 690. To prove
prejudice, a defendant must show that counsel’s errors were so serious that the
defendant was deprived of a fair trial and a reliable outcome. Id. at 687. “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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. We need not address both Strickland inquiries if the
defendant fails to make a sufficient showing on either one. See id. at 697.
¶31 The State argues that Griffin does not set forth what additional
questions trial counsel should have asked T.F. about her boots and the weather.
During cross-examination, trial counsel addressed the weather issue in these
questions:
[TRIAL COUNSEL:] Did you state yesterday that
it was snowing that day, October 30th of 2013?
[T.F.:] There was snow on the ground.
[TRIAL COUNSEL:] Okay. And you stated that
you were wearing boots, correct?
9
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (1979).
14
No. 2020AP1750-CR
[T.F.:] Uh-huh.
[TRIAL COUNSEL:] And you stated that you took
your boots off when you came in the apartment?
[T.F.:] Correct.
¶32 Griffin contends that weather data proving that there was no snow on
the ground on October 30, 2013, would have allowed counsel to impeach T.F.’s
credibility. The State contends that Griffin could not move to admit weather data
without a witness to authenticate the weather report. In response, Griffin argues
that the trial court could have taken judicial notice of the weather data, contending
it was a government report.
¶33 We consider Griffin’s claim through an analysis of prejudice. Even
if trial counsel had obtained the historical weather data, found an expert to testify
about it—or convinced the trial court to take judicial notice of the October weather
data—and impeached T.F.’s statement that she wore boots because of snow on the
ground, the result of the trial would not have changed. The evidence presented by
the State was overwhelming. T.F. testified about two instances of anal sexual
intercourse in which Griffin inserted his penis in her anus and one instance where
Griffin attempted to insert his penis in her vagina. T.F. testified that she did not
consent to any of these acts of sexual intercourse. Taylor testified that he saw
Griffin engaging in sexual contact with T.F. that was “absolutely not” consensual.
Her testimony that she removed her boots is not material or relevant to the
question of who sexually assaulted her and how that assault happened.
Impeaching T.F. about whether it was snowing or if there was snow on the ground
would not have changed the outcome of the trial. Therefore, we conclude that
Griffin has failed to show that trial counsel’s performance prejudiced his defense.
15
No. 2020AP1750-CR
Further, we conclude Griffin has failed to demonstrate sufficient material facts to
be entitled to a Machner hearing on his claim of ineffective assistance of counsel.
III. Erroneous admission of evidence
¶34 Griffin argues that the trial court erred when it admitted two letters
purportedly written by Griffin and given to Taylor. The decision to admit or
exclude evidence is an exercise of discretion by the trial court. See State v.
Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448. We will sustain the
court’s decision unless it erroneously exercised its discretion. State v. Hunt, 2014
WI 102, ¶20, 360 Wis. 2d 576, 851 N.W.2d 434. An evidentiary error is harmless
and not reversible unless the error “affected the substantial rights of the party” in
light of the entire record. WIS. STAT. § 805.18(2). “In order for an error to be
harmless, the State, as the party benefitting from the error, must prove that it is
‘clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.’” State v. Nelson, 2014 WI 70, ¶44, 355
Wis. 2d 722, 849 N.W.2d 317 (citation omitted). “The harmless error inquiry
raises a question of law that this court decides.” State v. Stietz, 2017 WI 58, ¶62,
375 Wis. 2d 572, 895 N.W.2d 796.
¶35 Griffin argues that the letters should not have been admitted because
they were not properly authenticated. WISCONSIN STAT. §§ 909.01 and 909.015
provide the framework for authentication of evidence. Section 909.01 provides
that “[t]he requirements of authentication or identification as a condition precedent
to admissibility are satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” One way to establish an
evidentiary foundation is through the “[t]estimony of a witness with knowledge
that a matter is what it is claimed to be.” Sec. 909.015(1). Under Wisconsin law,
16
No. 2020AP1750-CR
“authentication can be done through circumstantial evidence.” See State v.
Giacomantonio, 2016 WI App 62, ¶20, 371 Wis. 2d 452, 885 N.W.2d 394.
¶36 Griffin argues that there was insufficient evidence to support the
authentication of the letters. He asserts that the only evidence supporting the
letters authenticity was Taylor, who volunteered that the letters existed after
entering into his plea agreement. Griffin argues there was no corroborating
evidence: there was no witness other than Taylor who tied the letters to Griffin—
the inmate who passed the second letter was not identified or named as a witness.
The letters were not signed or dated. There is no evidence in the record to support
that Taylor recognized Griffin’s handwriting.10
¶37 For our inquiry, we will assume without deciding that letters were
erroneously admitted, and accordingly, we focus on whether this error was
harmless—in other words, whether it is clear beyond a reasonable doubt that the
error did not contribute to the guilty verdict. See Ronell Harris, 307 Wis. 2d 555,
¶113.
¶38 We review the evidence at trial to determine whether the admission
of the letters undermine our confidence in the verdict. T.F.’s testimony
established the facts that satisfied the elements of each of the three counts of
assaults. The first count was first-degree sexual assault sexual contact, aided or
abetted by one or more other persons, without consent, and by use of force. T.F.
testified that she went to Taylor’s apartment on his invitation on October 30, 2013.
10
Griffin further argued that the letters were prejudicial because they were passed in the
jail, but the trial court carefully admitted the letters without letting the jury know about Taylor
and Griffin’s presence in jail at the time the letters were passed. Therefore, because the jury did
not hear about either man’s presence in jail, no prejudice resulted.
17
No. 2020AP1750-CR
T.F. testified that she went into a bedroom with Taylor and he began to assault her,
and then Taylor told Griffin to enter the bedroom. T.F. fought against Taylor as
Griffin pulled off T.F.’s pants and underwear and Griffin forcibly inserted his
penis into her anus. The second count was for attempted second-degree sexual
assault, penis-to-vagina sexual intercourse by use of force and without consent.
T.F. testified after she struggled with Taylor, he left and she was alone with
Griffin, who tried, but failed, to insert his penis into T.F.’s vagina. The third count
was for second-degree sexual assault, penis-to-anus sexual intercourse by use of
force and without consent. T.F. testified that she struggled with Griffin and he
grabbed her and put his penis into her anus.
¶39 Additionally, the jury heard from Taylor, who testified about the
non-consensual and forceful nature of the assaults as well as his actions that aided
and abetted Griffin. Taylor testified that T.F. came over to his apartment at his
invitation, and when he had her alone in a bedroom, he also allowed Griffin to
enter the room. Griffin “snatched her jeans from behind and started to fondle her.”
Taylor testified that he struggled with T.F. and left the room. Several minutes
later, he returned and opened the bedroom door where he saw Griffin “being
forceful when he was holding [T.F.] down with his forearm.” He observed it was
“absolutely not” consensual.
¶40 Further, the SANE nurse testified that her examination of T.F. four
days after the incident showed bruises on T.F.’s hands, arms and legs; and she
reported that both her throat and her anus were very sore. The nurse documented
injuries to T.F.’s mouth and throat, which showed small hemorrhages under the
surface of the skin, which she testified, “most likely … occurs from some type of
blunt force trauma to the area.”
18
No. 2020AP1750-CR
¶41 Even if we assume without deciding that the trial court erred in
admitting the letters, we conclude any error was harmless because the evidence
against Griffin was overwhelming and the admission of the letters did not affect
Griffin’s substantial rights. See WIS. STAT. § 805.18. It is clear beyond a
reasonable doubt that the error did not affect undermine our confidence in the
verdict. See Ronell Harris, 307 Wis. 2d 555, ¶113. Accordingly, we conclude the
trial court did not err when it denied Griffin’s postconviction claim without a
hearing.
CONCLUSION
¶42 We conclude that Griffin has failed to show that the State committed
a Brady violation by not obtaining and disclosing the Registry photo that T.F.
brought to the police, and that Griffin has failed to demonstrate that trial counsel
was ineffective for failing to pursue weather data to impeach T.F.’s testimony
about snow on the ground. We further conclude that even if assuming without
deciding that the trial court erred in admitting the two letters, any error was
harmless. Accordingly, we conclude that Griffin has failed to demonstrate
sufficient material facts to require an evidentiary hearing on any of his claims.
Finally, we affirm Griffin’s judgment of conviction.
By the Court.—Judgment and orders affirmed.
Not recommended for publication in the official reports.
19
No. 2020AP1750(C)
¶43 DUGAN, J. (concurring). I concur with the Majority’s analysis of
all of the issues except its analysis of the erroneous admission of evidence—two
letters purportedly written by Griffin and given to Taylor. 1 I conclude that the
letters were sufficiently authenticated and properly admitted into evidence. 2 Any
challenge to the letters goes to the weight of the evidence not its admissibility.
Thus, I would not address or join in the Majority’s harmless error analysis that the
Majority engages in. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514(Ct. App. 1989).
¶44 I part ways with the Majority’s opinion because they do not address
whether the letters were admissible. Rather, they address the issue by assuming
without deciding that the letters were erroneously admitted and base their decision
on their conclusion that any error was harmless. I write separately because as
noted, I conclude that the letters were sufficiently authenticated and were thus
admissible.
¶45 In setting forth Griffin’s arguments, I incorporate much of the
Majority’s summary of Griffin’s arguments for ease of reading and analysis.
Griffin argues that the letters should not have been admitted because they were not
properly authenticated as a result of insufficient evidence to support the
authentication of the letters. He asserts that the only evidence supporting the
1
The Majority’s discussion of this issue begins at Majority, ¶34.
2
Taylor testified that he received the first letter in November 2013 and the second letter
in January 2014 from Griffin while they were both in the Milwaukee County Jail.
No. 2020AP1750(C)
letters’ authenticity was Taylor, who volunteered that the letters existed only after
he entered into his plea agreement with the prosecutor. Griffin further argues
there was no corroborating evidence that he wrote the letters. He states that
Taylor was the only witness who tied the letters to Griffin—the inmate who
passed the second letter was not identified or named as a witness. He also asserts
that the letters were not signed or dated and that there was no evidence in the
record to show that Taylor recognized Griffin’s handwriting. He further argues
that the “State could not tie the letters to Griffin in any way (whether by chain of
custody-type evidence or otherwise) and could point to nothing to support a
finding that Griffin wrote the two letters beyond Taylor’s self-serving testimony.”
Thus, he argues that this court should find that the trial court should have excluded
the two letters.
¶46 I reject Griffin’s arguments for the following reasons. WISCONSIN
STAT. §§ 909.01 and 909.015 provide the framework for authentication of
evidence. Section 909.01 provides that “[t]he requirements of authentication or
identification as a condition precedent to admissibility are satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” One way to establish an evidentiary foundation is through the
“[t]estimony of a witness with knowledge that a matter is what it is claimed to be.”
Sec. 909.015(1). Moreover, “authentication can be done through circumstantial
evidence.” See State v. Giacomantonio, 2016 WI App 62, ¶20, 371 Wis. 2d 452,
885 N.W.2d 394.
¶47 When reviewing evidentiary issues, “‘[t]he question on appeal is not
whether this court, ruling initially on the admissibility of the evidence, would have
permitted it to come in, but whether the trial court exercised its discretion in
accordance with accepted legal standards and in accordance with the facts of
2
No. 2020AP1750(C)
record.’” State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (citation
omitted). The trial court has “broad discretion to admit or exclude evidence.” See
Giacomantonio, 371 Wis. 2d 452, ¶17 (citation omitted). “This court will not
disturb a [trial] court’s decision to admit or exclude evidence unless the [trial]
court erroneously exercised its discretion.” State v. Hunt, 2014 WI 102, ¶20, 360
Wis. 2d 576, 851 N.W.2d 434. “This court upholds the trial court’s decision to
admit evidence ‘if the [trial] court examined the relevant facts, applied a proper
legal standard, and, using a demonstrated rational process, reached a reasonable
conclusion.’” Giacomantonio, 371 Wis. 2d 452, ¶17 (citation omitted). Further,
“[f]or a discretionary decision of this nature to be upheld, however, ‘there should
be evidence in the record that discretion was in fact exercised and the basis of that
exercise of discretion should be set forth.’” Pharr, 115 Wis. 2d at 342 (citation
omitted).
¶48 However, in this case, I note that at the time the trial court ruled that
the letters were admissible, the trial court failed to set forth its reasoning in
exercising its discretion to admit the letters. While the trial court was addressing
Griffin’s counsel’s objection to the admissibility of the letters, Taylor’s counsel
clarified for the court that the letters were not sent through the mail. Rather, he
told the court that the letters were passed between Griffin and Taylor while both
were in the jail and that how it was done would be explained in detail if it was
allowed. The trial court then stated, “So the court’s ruling is this. The questions
may be asked of Mr. Taylor from whom did you get these notes.” The court then
asked Taylor’s trial counsel if he anticipated that Taylor was “passed these notes
directly from Mr. Griffin?” Trial counsel responded that Taylor was on one side
of the door between the jail pod and the gym and Griffin was on the other side and
Griffin handed the note to a third inmate who slid it under the door to Taylor, all
3
No. 2020AP1750(C)
within Taylor’s view.3 The trial court then told the prosecutor that she had to craft
a question for Taylor about how he received the letters that did not disclose to the
jury that either Griffin or Taylor were in custody.
¶49 In its decision denying Griffin’s postconviction motion, the trial
court reiterated its statements that it made during the hearing on the objection to
the admissibility of the letters as described above. It then stated that “[t]he court
stands by its admission of the letters, as well as its implicit ruling on the sufficient
authentication of the letters.” The court then went on to add more details
explaining why it held that the letters were admissible by quoting the language in
WIS. STAT. § 909.015(1), (4), for the proposition that authentication conforming
with statutory requirements may be established by the “‘[t]estimony of a witness
with knowledge that a matter is what it is claimed to be[,]’ as well as by ‘contents,
substance … or other distinctive characteristics, taken in conjunction with
circumstances.’” The court then stated that “Taylor’s testimony, including his
reading of portions of the contents of the letters discussing trial strategy, meets the
statutory requirements for authentication.”
¶50 I conclude that the record, at the time of trial, does not show that
trial court examined the relevant facts, applied a proper legal standard, and, using
a demonstrated rational process, reached a reasonable conclusion at the time that it
admitted the letters. See Giacomantonio, 371 Wis. 2d 452, ¶17. In such
circumstances our supreme court has held that “where the trial court fails to set
3
Apparently trial counsel was addressing how the January letter was passed because that
is what Taylor testified to at trial as to how he received the letter. In a note that Taylor wrote to
his trial counsel when Taylor mailed the November letter to counsel, Taylor wrote that he got the
letter from Griffin who passed it under the gym door that connected their jail pods.
4
No. 2020AP1750(C)
forth its reasoning in exercising its discretion to admit evidence, the appellate
court should independently review the record to determine whether it provides a
basis for the trial court’s exercise of discretion.” Pharr, 115 Wis. 2d at 343.
¶51 After reviewing the record, I conclude that the authentication of the
two letters was established through circumstantial evidence. The circumstantial
evidence of the timing and the content of the letters support a finding that the
letters were written by Griffin. First as to timing, prior to Taylor entering into his
plea agreement with the prosecutor, Griffin and Taylor were co-defendants in a
single complaint facing a joint trial. Further, based on Taylor’s trial counsel’s
statements to the trial court and Taylor’s testimony during the trial, Taylor
received the letters before he entered into his plea agreement on May 2, 2014, with
the prosecutor. When Griffin’s trial counsel objected to the admission of the two
letters during the trial, Taylor’s trial counsel advised the court that Taylor received
the first letter directly from Griffin in the Milwaukee County Jail where they were
both in custody in November 2013, and that Taylor watched Griffin hand the
second letter to a fellow inmate at the jail, who then gave it to Taylor by sliding it
under the door in January 2014.
¶52 During the trial when the State introduced the letters, Taylor testified
that after he received the first letter from Griffin, he mailed it to his attorney with a
short note and that the envelope was postmarked November 22, 2013.4 Taylor
“wanted [trial counsel] to have it in his possession so it wasn’t misplaced.” The
letter and envelope were produced and admitted into evidence at the trial. Taylor
4
The note was admitted into evidence at the trial and states in part, “I got this note from
Ronald Griffin through the door, like I said his pod is right next to mine and we use the same gym
so he passed this note under the gym door that connects our pods.”
5
No. 2020AP1750(C)
testified he received the second letter from Griffin in January 2014 and he
personally handed the letter to his attorney shortly thereafter. I conclude that the
timing of the letters—Taylor received them while Taylor and Griffin were co-
defendants, in the jail in adjoining jail pods, awaiting a joint trial, and prior to
Taylor entering into a plea agreement with the prosecutor, supports a finding that
Griffin wrote the letters.
¶53 Further, I conclude that the content of the letters supports a finding
that Griffin wrote the letters. The first letter from November stated in part:
What they trying to break us? Ha, ha, they cant break no
real stand up niggas, feel me? … [S]o fuck the Judge, fuck
the d.a. and fuck any nigga that wanna ride with ‘em! We
good my nigga we just gotta ride it out and we need to get
on that speedy trial ASAP. As soon as I see that lawyer Im
tellin him to put in for a speedy trial—you do the same—I
already know you on top of it. We got this we just need to
lean back and ride it out … hit me back ASAP—you have
gym tomorrow morning so lets do this—at 8:30 tomorrow
morning slide your kite threw the door—Ill be watching for
it so Ill get it … Ill grab it—just so we on the same page ….
The second letter from January stated in part:
Aint shit too it on this end, Jus tryin to keep a cool head. I
talked to my lawyer the other day and he let me listen to the
recorded phone call—he said there is Alot he has can play
with but he doesnt want the jury hearing it—he said he has
Alot of positive shit to go on—he said there is no dNA. he
Also said it would be better to have separate trials because
that would mean that she would have to testify twice and it
would be better if we withdrew the speedy trial and just
went for a regular trial because all the shit is still fresh in
her mind and the longer that passes the better because she
will forget key points in her testimony—let me know what
u think? we need to be on the same page, feel me? Im just
letting u know everything that I know, feel me? the motion
is called a severance motion for two separate trials—do u
want to go to trial together or have separate ones? think
about it and let me know? My lawyer told me in his 14 yrs
being a lawyer he has never seen co-defendants not telling
on each other—I said there Aint nothing to tell on and if
6
No. 2020AP1750(C)
there was it Aint in our blood, feel me? he said us not
saying shit will have a huge impact because the d.a. wont
have much to go on with me and you not saying shit, feel
me? all they have is her statement which Aint shit because
she will get chewed up on the stand … I’ll watch 4 u in the
gym hit me back and let me know what it is.
¶54 The first letter told Taylor that they had “to ride it out and we need
to try to get a speedy trial as soon as possible.” It also recommended that Taylor
ask his attorney to request a speedy trial. At a December 2013 hearing before the
trial court, Griffin’s trial counsel and Taylor’s trial counsel each requested a
speedy trial. In the second letter the trial strategy in the letter changed, telling
Taylor that they should have “separate trials, because that could mean that [T.F.]
would have to testify twice and it would be better if we withdrew the speedy trial
because all this … is still fresh in her mind.” The record reflects that in January
2014, Griffin’s trial counsel moved to sever their trials, and the following month,
Griffin’s trial counsel moved to withdraw the speedy trial request. Based on the
content of the letters that reflects that Griffin was suggesting to Taylor that they
needed a united front in proceeding through the trial and discussed trial tactics, 5 I
conclude that the circumstantial evidence supports a finding that Griffin wrote the
letters.
¶55 I conclude that the letters were sufficiently authenticated and were
thus admissible. Any challenge to the letters goes to the weight of the evidence
5
As noted above, that in its postconviction written decision the court stated that
authentication conforming with statutory requirements may be established by the “‘[t]estimony of
a witness with knowledge that a matter is what it is claimed to be[,]’ as well as by ‘contents,
substance … or other distinctive characteristics, taken in conjunction with circumstances.’” The
court then stated that “Taylor’s testimony, including his reading of portions of the contents of the
letters discussing trial strategy, meets the statutory requirements for authentication.” I agree with
the court’s postconviction explanation for why it found the letters admissible.
7
No. 2020AP1750(C)
not its admissibility. Thus, I would affirm on this ground and therefore, do not
join in the Majority’s harmless error analysis.
8