State v. Larrell J. Williams ( 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.
April 5, 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 Nos.
2021AP1237-CR Cir. Ct. Nos. 2018CF5660
2019CF128
2021AP1238-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
LARRELL J. WILLIAMS,
DEFENDANT.
APPEALS from judgments and an order of the circuit court for
Milwaukee County: MICHELLE ACKERMAN HAVAS and DAVID A. FEISS,
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).
Nos. 2021AP1237-CR
2021AP1238-CR
¶1 PER CURIAM. Larrell J. Williams, pro se, appeals his judgments of
conviction for armed robbery with the use of force as a party to a crime, second-
degree recklessly endangering safety as a party to a crime, and two counts of
possession of a firearm by a felon. He also appeals the order denying his
postconviction motion. Williams argues that the trial court1 erred in denying his
motion to suppress the gun found when police searched his vehicle, asserting that
they did not have reasonable suspicion to conduct the stop. He also argues that his
trial counsel was ineffective in several ways, and that his due process rights were
violated by the failure of a police detective to retain the notes of his interviews with
two witnesses to the armed robbery. Upon review, we affirm.
BACKGROUND
¶2 The charges against Williams stem from his role in a robbery set up
through a fake car sale advertised on Craigslist. In October 2018, T.R., via text
messages and emails, negotiated the purchase of an Audi listed in the advertisement,
and was to meet the seller in an alley around North 70th Street in Milwaukee. T.R.
told police that he was robbed by two Black males at the meeting place, one of
whom pulled a handgun and fired a shot into the ground by T.R.’s feet. Police
recovered a spent shell casing at the scene.
¶3 Subsequently, in November 2018, officers on routine patrol spotted a
vehicle parked at a gas station on West Appleton Avenue in Milwaukee. The
officers observed that the vehicle did not have a front license plate, and that its
windows were darkly tinted. When the officers ran the rear license plate, they found
1
Williams’ motion to suppress was heard by the Honorable T. Christopher Dee, and his
trial was before the Honorable Michelle Ackerman Havas; we refer to them both as the trial court.
Williams’ postconviction motion was decided by the Honorable David A. Feiss; we refer to him as
the postconviction court.
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that there was no specific vehicle information attached to the plate, but that it had
been registered in Portage, Wisconsin.
¶4 The officers were attempting to make contact with a female passenger
in the vehicle when a male exited the gas station and came toward the vehicle. The
officers made contact with him; he was identified as Williams, and stated that he
owned the vehicle. The officers could smell marijuana on Williams as well as
coming from inside the vehicle. The officers therefore conducted a search of the
vehicle, and discovered a handgun behind the passenger seat. Williams attempted
to flee on foot, but was apprehended and arrested.
¶5 A test of the gun found in Williams’ vehicle indicated that it was the
same gun used in the Craigslist robbery. The cases were joined for trial.
¶6 Prior to trial, Williams filed a motion to suppress the evidence found
in his vehicle—most notably, the gun—asserting that the officers lacked reasonable
suspicion to conduct the search. After a hearing on the motion, at which one of the
arresting officers testified, the trial court denied Williams’ motion, finding that the
lack of a front license plate was a sufficient reason to justify the search.
¶7 The matter proceeded to a jury trial in October 2019. Williams was
found guilty on all counts.
¶8 Williams elected to proceed with this appeal pro se. In his
postconviction motion, he argued that the trial court erred in denying his suppression
motion. He further asserted that his trial counsel was ineffective for several
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reasons: failing to bring a Daubert2 motion to preclude the State’s firearms
examiner from testifying as an expert; failing to request a jury instruction relating
to the testimony of the police detective who conducted interviews with two
witnesses to the robbery of T.R. and did not retain his notes of those interviews;
failing to request a more detailed jury instruction on identification testimony; failing
during the suppression motion hearing to impeach the credibility of the arresting
officer who conducted the stop of his vehicle with regard to the timing of his check
of the license plate; and failing to read the search warrants regarding the cell phone
evidence relating to the robbery of T.R., and further investigate the same. He also
argued that his due process rights were violated by the detective’s failure to retain
his interview notes.
¶9 The postconviction court rejected all of Williams’ arguments, and
thus denied Williams’ motion without a hearing. This appeal follows.
DISCUSSION
¶10 Williams raises the same arguments on appeal as he did in his
postconviction motion. We address each of them in turn.
Denial of Motion to Suppress
¶11 We first review Williams’ argument that the trial court erroneously
denied his motion to suppress. The review of a trial court’s decision on a motion to
suppress presents a mixed question of fact and law. State v. Eason, 2001 WI 98,
¶9, 245 Wis. 2d 206, 629 N.W.2d 625. We will not reverse the trial court’s findings
2
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993) (under Federal
Rule 702, the federal equivalent to WIS. STAT. § 907.02, the trial court serves as a gatekeeper to
ensure that scientific testimony is both relevant and reliable).
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of fact unless they are clearly erroneous; however, we review de novo the
application of constitutional principles to those facts. Id.
¶12 “The Fourth Amendment of the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution protect people from
unreasonable searches and seizures.” State v. Young, 2006 WI 98, ¶18, 294 Wis.
2d 1, 717 N.W.2d 729 (footnotes omitted). However, “an investigatory stop for
which a law enforcement officer [has] reasonable suspicion ‘in light of his
experience that criminal activity may be afoot’” is constitutionally permissible.
County of Grant v. Vogt, 2014 WI 76, ¶27, 356 Wis. 2d 343, 850 N.W.2d 253(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
¶13 In that vein, “[t]here is no question that a police officer may stop a
vehicle when he or she reasonably believes the driver is violating a traffic law[.]”
State v. Betow, 226 Wis. 2d 90, 93, 593 N.W.2d 499 (Ct. App. 1999). Furthermore,
“[a]fter a justifiable stop is made, the officer may expand the scope of the inquiry[,]”
but only for purposes of investigating “additional suspicious factors [that] come to
the officer’s attention.” State v. Hogan, 2015 WI 76, ¶35, 364 Wis. 2d 167, 868
N.W.2d 124 (citation omitted; third set of brackets in Hogan).
¶14 In this case, the officers observed that Williams’ vehicle did not have
a front license plate in violation of WIS. STAT. § 341.15(1) (2019-20).3
Additionally, the officers noted that his vehicle had darkly tinted windows, and
subsequent testing of that tinting confirmed that all of the windows, except for the
windshield, were in violation of WIS. ADMIN. CODE § Trans. 305.32(4)(b)2.
3
All references to the Wisconsin Statutes are to the 2019-20 version, unless otherwise
noted. Although we recognize that Williams was arrested and charged while the 2017-18 version
was in effect, there is no difference in the language of this statute between these versions.
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and (5)(b) (May 2014). Therefore, the officers had reasonable suspicion of traffic
violations to justify the Terry stop of the vehicle. See Betow, 226 Wis. 2d at 93.
¶15 Furthermore, the officers smelled marijuana coming from the vehicle.
“The unmistakable odor of marijuana coming from an automobile provides probable
cause for an officer to believe that the automobile contains evidence of a crime.”
State v. Secrist, 224 Wis. 2d 201, 210, 589 N.W.2d 387 (1999).
¶16 Moreover, although Williams was not in the vehicle at the time the
officers began their investigation, when he exited the gas station and approached the
vehicle, one of the officers recognized him from a recent incident where the officer
had issued Williams a parking citation for the same vehicle but with a different
license plate. The officers considered that incident in conjunction with their
knowledge that vehicles with only one plate which is not linked to a specific vehicle
suggests that the vehicle may have been stolen. These are additional suspicious
factors that justify expanding the scope of the investigation to a search of Williams’
vehicle. See Hogan, 364 Wis. 2d 167, ¶35.
¶17 Thus, in applying the relevant constitutional principles to the facts set
forth in the record, we conclude that the trial court did not err in denying Williams’
motion to suppress. See Eason, 245 Wis. 2d 206, ¶9.
Ineffective Assistance of Counsel Claims
¶18 We next address Williams’ claims that his trial counsel was
ineffective in several ways. To prove ineffective assistance of counsel, a defendant
must show that his trial counsel’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
defendant “must prevail on both parts of the test to be afforded relief.” State v.
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Allen, 2004 WI 106, ¶26, 274 Wis. 2d 568, 682 N.W.2d 433. We review de novo
“‘the legal questions of whether deficient performance has been established and
whether it led to prejudice rising to a level undermining the reliability of the
proceeding.’” State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d
111 (citation omitted). However, “[a] court need not address both components of
this inquiry if the defendant does not make a sufficient showing on one.” State v.
Smith, 2003 WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854.
¶19 A claim of ineffective assistance of counsel requires that a
postconviction evidentiary hearing be held “to preserve the testimony of trial
counsel.” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
However, a defendant is not automatically entitled to an evidentiary hearing relating
to his or her postconviction motion. State v. Bentley, 201 Wis. 2d 303, 309-10, 548
N.W.2d 50 (1996). Rather, the trial court is required to hold an evidentiary hearing
only if the defendant has alleged “sufficient material facts that, if true, would entitle
the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14. This is a question of law that
we review de novo. Id., ¶9.
¶20 If, on the other hand, 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 trial court, in its discretion, may either grant or deny a hearing. Id. We will
uphold such a discretionary decision if the trial court “has examined the relevant
facts, applied the proper legal standards, and engaged in a rational decision-making
process.” Bentley, 201 Wis. 2d at 318.
¶21 Williams first asserts that his trial counsel was ineffective for failing
to file a Daubert motion seeking to preclude the testimony of the firearms and tool
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mark examiner from the Wisconsin State Crime Lab regarding the tests she
conducted on the shell casing recovered from the scene of the armed robbery of T.R.
and the gun found in Williams’ vehicle. Williams contends that the examiner was
not properly qualified as an expert, as there was a lack of documentation regarding
the methodology she used in conducting the tests, including a “peer review process.”
¶22 However, the record indicates that the examiner began her testimony
by explaining her extensive education and training in this field, which established
her qualifications as an expert; indeed, she stated she had testified previously as an
expert approximately seven times. “[P]ersonal knowledge and experience may form
the basis for expert testimony.” State v. Hogan, 2021 WI App 24, ¶25, 397 Wis. 2d
171, 959 N.W.2d 658. In fact, “the ‘methodology’ underlying the expert’s
conclusions is part and parcel of the expert’s qualifications, and may be nothing
more than rigorous participation in all of the various activities, trainings, and
experiences available to that individual.” Id., ¶30. Although peer review and
publication of a particular methodology is a factor that may be considered by the
trial court in determining the reliability of expert testimony, it is not a necessary
component. See Seifert v. Balink, 2017 WI 2, ¶¶62, 65, 372 Wis. 2d 525,
888 N.W.2d 816 (the trial court “may consider some, all, or none” of the Daubert
factors to determine whether expert evidence is reliable).
¶23 The admission of expert testimony is within the discretion of the trial
court, and that discretion is properly exercised “if it has a rational basis and was
made in accordance with accepted legal standards in view of the facts in the record.”
See State v. Smith, 2016 WI App 8, ¶4, 366 Wis. 2d 613, 874 N.W.2d 610 (citation
omitted). Upon review, we conclude that the firearms examiner’s testimony was
properly admitted by the trial court. See id. As a result, the filing of a Daubert
motion seeking to exclude this testimony would not have been successful, and trial
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counsel cannot be deemed to be deficient for failing to make a meritless argument.
See State v. Swinson, 2003 WI App 45, ¶59, 261 Wis. 2d 633, 660 N.W.2d 12.
¶24 For Williams’ next ineffective assistance claim, he asserts that his trial
counsel failed to request a jury instruction regarding the investigating police
detective’s failure to keep notes of the witness interviews he conducted after the
robbery of T.R. As the detective explained in his testimony, T.R. came into the
police station with two friends to report the robbery. The detective took statements
from all three men; however, the detective suspected that the statements by the two
friends were “tainted,” in that they described the incident the same way that T.R.
had, yet they had indicated that they had fled when they heard the shot fired by
Williams. Furthermore, they were not able to provide a description of the shooter.
Thus, the detective believed that T.R.’s friends were simply repeating what T.R. had
told them about the incident. As a result, the detective prepared a report of T.R.’s
statement, but did not prepare reports of the statements given by his friends. The
detective admitted on cross examination that he was unable to locate his notes
regarding the statements of T.R.’s friends, and that his testimony was based on his
memory of the interviews.
¶25 Williams failed to adequately plead this claim. A defendant’s
postconviction motion must allege “sufficient material facts for reviewing courts to
meaningfully assess a defendant’s claim,” which generally should include “the five
‘w’s’ and one ‘h’; that is, who, what, where, when, why, and how.” Allen, 274
Wis. 2d 568, ¶23. Williams does not explain what jury instruction should have been
requested, or why such an instruction was required. Furthermore, Williams does
not explain how an instruction on this matter would have had an effect on the
outcome of the trial. Rather, Williams merely speculates that had the notes been
available, they “may have been able to expose some major inconsistencies in their
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statements. This would have given the jury a powerful reason to consider that the
identification of Williams was inadequate.” This conclusory allegation is not
sufficient to support a claim of ineffective assistance of counsel. See id., ¶9.
Therefore, Williams has not demonstrated that he was entitled to a hearing on this
claim. See id.
¶26 Williams’ next claim, that his trial counsel was ineffective for failing
to request a different version of the jury instruction relating to identification
testimony, also fails. In his postconviction motion and on appeal, Williams refers
to “bracketed paragraphs” in WIS JI—CRIMINAL 141, and asserts that this “more
detailed version” of the instruction should have been presented to the jury. In
support of his argument, Williams cites State v. Waites, 158 Wis. 2d 376, 462
N.W.2d 206 (1990), which addressed the issue of whether the trial court there
should have given the “more detailed version” of WIS JI—CRIMINAL 141. Waites,
158 Wis. 2d at 379. However, Waites was reviewing the version of the instruction
from 1987. See id. at 383. The instruction has since been amended—most recently
in 2012, according to the comments in the instruction—and there is no longer any
optional language set forth in brackets. See WIS JI—CRIMINAL 141.
¶27 Here, the record indicates that WIS JI—CRIMINAL 141 was read to the
jury in its entirety. Therefore, because the trial court correctly instructed the jury
on the issue of identification, Williams’ trial counsel cannot be deemed to be
deficient on this issue. See State v. Ziebart, 2003 WI App 258, ¶17, 268 Wis. 2d
468, 673 N.W.2d 369.
¶28 Next, Williams claims that his trial counsel was ineffective for failing
to impeach one of the arresting officers at the suppression hearing regarding the
check of his license plate. Williams asserts that the officers did not run the license
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plate until several hours after the stop, and that this information could have been
used to impeach the officer’s credibility regarding the reasonable suspicion for the
stop.
¶29 However, the initial reason for the stop was that there was only one
license plate on the vehicle, along with the suspicion that the level of tint on the
windows was illegal—both of which are violations of the traffic code. See WIS.
STAT. § 341.15(1); WIS. ADMIN. CODE § Trans. 305.32(4)(b)2. and (5)(b). As we
have already concluded, these factors justified the investigatory stop of Williams’
vehicle. See Betow, 226 Wis. 2d at 93. Furthermore, we also concluded that the
smell of marijuana coming from the vehicle justified expanding the scope of the
stop to a search of the vehicle. See Secrist, 224 Wis. 2d at 210. Williams fails to
demonstrate how potentially impeaching the officer regarding the timing of the
license plate check would have overcome these factors to change the outcome of the
suppression motion hearing. See Strickland, 466 U.S. at 687. Therefore, this claim
fails as well.
¶30 Williams’ final ineffective assistance claim is that his trial counsel
failed to read the search warrants specifically with regard to the cell phone
information linking Williams with text messages sent to T.R. about the fake
Craigslist advertisement. However, an affidavit by the investigating officer—which
Williams attached to his postconviction motion—demonstrates that the cell phone
number listed in the Craigslist advertisement, to which T.R. had sent and received
text messages regarding the vehicle purchase, had been linked to Williams. Thus,
this appears to be inculpatory evidence, and Williams fails to explain how this
evidence could be exculpatory evidence that his trial counsel was ineffective for
failing to investigate. Therefore, this claim is inadequately pled. See Allen, 274
Wis. 2d 568, ¶23.
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¶31 In sum, all of Williams’ ineffective assistance of counsel claims either
fail on the merits or were inadequately pled. As a result, the postconviction court
did not err in denying his motion without granting a hearing. See id., ¶9.
Due Process Violation Claim
¶32 For Williams’ final claim, we return to the issue of the interviewing
detective’s failure to retain his notes from his interviews with T.R.’s friends, which
Williams asserts violated his right to due process. In order to “rise to the level of a
due process violation,” evidence which is “not preserved, lost or destroyed by the
State ‘must both possess an exculpatory value that was apparent before the evidence
was destroyed, and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.’” State v. Greenwold,
189 Wis. 2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994) (citation omitted); see also
State v. Huggett, 2010 WI App 69, ¶13, 324 Wis. 2d 786, 783 N.W.2d 675(confirming the due process test set forth in Greenwold for cases involving the
State’s failure to preserve evidence).
¶33 Similar to his ineffective assistance of counsel claim regarding this
issue, here Williams again merely speculates that the missing notes “may have been
able to play a significant role” in his defense, “[e]specially since identification was
a major issue in the case.” This type of conclusory allegation is not sufficient to
obtain relief. See Allen, 274 Wis. 2d 568, ¶9. Furthermore, the detective testified
that T.R.’s friends’ statements matched T.R.’s to the extent that he believed the
friends were simply repeating T.R.’s description of the incident. Williams fails to
explain how the same description of the incident from T.R.’s friends would be
exculpatory evidence helpful to his defense. See id., ¶23. Moreover, T.R. and both
of his friends testified at trial, and thus were subject to cross-examination regarding
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their statements to police. Therefore, Williams’ claim of a due process violation
fails. See Greenwold, 189 Wis. 2d at 66-67.
¶34 Accordingly, because all of Williams’ claims fail, we affirm his
judgments of conviction and the order denying his postconviction motion without a
hearing.
By the Court.—Judgments and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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