State v. Keonta Latrez Moore

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.
January 24, 2023
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. 2022AP325-CR Cir. Ct. No. 2017CF4320
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
KEONTA LATREZ MOORE,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE, Judge. 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).
¶1 PER CURIAM. Keonta Latrez Moore appeals his judgment of
conviction for one count of first-degree reckless injury, one count of first-degree
No. 2022AP325-CR
recklessly endangering safety, and possession of a firearm by a felon. He also
appeals the order denying his postconviction motion for a new trial. Moore argues
that his trial counsel was ineffective for failing to raise a multiplicity objection,
based on the recklessly endangering safety offense being a lesser-included crime to
reckless injury. He further asserts that counsel was ineffective for failing to object
to the jury instructions as being inadequate to protect his right to a unanimous
verdict, because they did not specify the alleged acts for each charge against Moore.
We reject Moore’s claims and affirm.
BACKGROUND
¶2 The charges against Moore stem from a shooting that occurred in
September 2017. According to the criminal complaint, N.J.D. told police that he
was walking with his friend, K.R., on North 28th Street in Milwaukee when a gray
SUV pulled up next to them. The driver rolled down the window of the vehicle and
pointed a gun at them. The driver told K.R. to move, pulled down a half mask he
was wearing exposing his face, and said to N.J.D. “You a snitch.” The driver then
fired at N.J.D. repeatedly, striking him in the hip. N.J.D. identified the shooter as
Moore.
¶3 Moore was charged with one count of first-degree reckless injury with
the use of a dangerous weapon and one count of first-degree recklessly endangering
safety with the use of a dangerous weapon, as well as possession of a firearm by a
felon. The victim listed on the complaint for both the reckless injury count and the
recklessly endangering safety count was N.J.D.
¶4 The matter proceeded to a jury trial in March 2018. Both K.R. and
N.J.D. testified at trial. K.R. explained that he was standing between N.J.D. and
Moore when Moore pointed the gun at them. He stated that he froze for a moment
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No. 2022AP325-CR
before N.J.D. pushed him to get him to run. He then ran up the street to his house.
He estimated that there were three to four initial shots, and he heard additional shots
being fired after he had run home. K.R. identified Moore as the shooter, explaining
that Moore had pulled up to his house after the shooting and told him that it “really
don’t got nothing to do with you,” and that when Moore saw N.J.D. again, he was
going to kill him.
¶5 N.J.D. testified that he had known Moore for three or four years; they
had been best friends, but Moore blamed him for another person’s arrest in a
different incident. N.J.D. stated that when Moore shot at him, the first shot hit him
in the leg, but he was able to run away by cutting through backyards, eventually
hiding between a house and garage. He said that Moore initially fired seven or eight
shots, and then fired three additional shots in the air as he was “riding around
looking for [N.J.D.].”
¶6 After the close of evidence, the trial court read the instructions to the
jury describing the elements of each crime. With regard to the reckless injury count,
the court stated that N.J.D. was the victim and in order to convict Moore of that
crime, the jury would have to find that he “caused great bodily harm to [N.J.D.].”
However, N.J.D. was not named as the victim for the recklessly endangering safety
count; rather, the court instructed the jury that it must find that Moore “endangered
the safety of another human being” in order to convict him of that crime. (Emphasis
added.)
¶7 The jury convicted Moore on all charges. The trial court imposed a
sentence totaling eighteen years of initial confinement and nine years of extended
supervision.
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No. 2022AP325-CR
¶8 Moore filed a postconviction motion for a new trial, asserting that
because recklessly endangering safety is a lesser-included offense of reckless injury,
the charges against him were multiplicitous and his convictions for both of these
offenses was thus a double jeopardy violation.1 Moore argued that his trial counsel
was ineffective for failing to raise this issue; in particular, he contended that counsel
should have objected to the jury instructions and verdict forms based on the
unanimity requirement, arguing that the instructions and verdict are required to state
which specific criminal act formed the basis for each guilty verdict. He suggested
that this lack of specificity is indicative of the charges being multiplicitous.
¶9 The trial court rejected Moore’s arguments. The court found that
based on the evidence adduced at trial—that Moore shot multiple times, with one
shot hitting N.J.D.—each shot was a separate criminal act. Therefore, the court
determined that the charges were not multiplicitous in violation of the double
jeopardy clause. Furthermore, the court stated that under these circumstances, the
jury did not need to be instructed that it had to reach a unanimous decision regarding
which shot injured N.J.D. and which shot endangered “another human being,” nor
was more specificity required on the verdict forms.
¶10 The trial court therefore found that Moore’s trial counsel was not
ineffective for failing to raise objections on these issues, and denied Moore’s motion
without a hearing. This appeal follows.
1
Appointed postconviction counsel for Moore initially filed a no-merit appeal, filing a
corresponding report as well as a supplemental report after Moore responded. This court requested
a further supplemental report “to address why Moore cannot pursue arguably meritorious
postconviction claims regarding double jeopardy, jury unanimity, and ineffective assistance of
counsel based on his conviction of both first-degree reckless injury by use of a dangerous weapon
and first-degree recklessly endangering safety by use of a dangerous weapon,” based on the
allegations in the criminal complaint. Counsel then requested the voluntary dismissal of the no-
merit appeal, which was granted.
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No. 2022AP325-CR
DISCUSSION
¶11 On appeal, Moore reasserts his claims of multiplicity and ineffective
assistance of counsel. It is firmly established that an ineffective assistance claim, if
sufficiently pled, would require a postconviction evidentiary hearing to be held
before the trial court in order “to preserve the testimony of trial counsel.” See
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). However,
a defendant is not entitled to a postconviction evidentiary hearing if he or she does
not raise sufficient facts to demonstrate that relief is warranted; if the allegations are
merely conclusory; or, if the record conclusively demonstrates that the defendant is
not entitled to relief. State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d
433.
¶12 To establish a claim of ineffective assistance of counsel, a defendant
must demonstrate that his or her lawyer performed deficiently and that deficient
performance prejudiced his or her defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). A court may reject a claim of ineffective assistance of counsel on
either ground. Id. at 697. Whether counsel’s performance was deficient and
whether the defendant was prejudiced are questions of law that we review de novo.
State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111.
¶13 We first discuss Moore’s claim that his convictions were
multiplicitous and therefore violated the double jeopardy clause. The constitutional
guarantee against double jeopardy includes protection against “‘multiple
punishments for the same offense.’” State v. Robinson, 2014 WI 35, ¶22, 354
Wis. 2d 351, 847 N.W.2d 352 (citation omitted). “Whether an individual’s
constitutional right to be free from double jeopardy has been violated is a question
of law that this court reviews de novo.” Id., ¶18 (citation omitted).
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No. 2022AP325-CR
¶14 “We employ a two-prong test when analyzing a multiplicity
challenge: (1) whether the charged offenses are identical in law and fact; and
(2) whether the legislature intended multiple offenses to be charged as a single
count.” State v. Schaefer, 2003 WI App 164, ¶44, 266 Wis. 2d 719, 668 N.W.2d
760. As there was a trial held in this case, we consider all of the evidence elicited
at the trial, as opposed to only reviewing the charges as set forth in the criminal
complaint. See id., ¶47.
¶15 The first prong of the multiplicity test “involves a determination of
whether the charged acts are ‘separated in time or are of a significantly different
nature.’” State v. Koller, 2001 WI App 253, ¶31, 248 Wis. 2d 259, 635 N.W.2d 838(citation omitted). The analysis of whether the acts are of a different nature “is not
limited to an assessment of whether the acts are different types of acts. Rather, even
the same types of acts are different in nature ‘if each requires a new volitional
departure in the defendant’s course of conduct.’” Id. (citations and some quotation
marks omitted). Moreover, the interval between acts can be “merely minutes or
even seconds” and still constitute a separate volitional act. See Harrell v. State,
88 Wis. 2d 546, 572, 277 N.W.2d 462 (Ct. App. 1979).
¶16 Additionally, the general rule in considering charges made against a
defendant is that there are “as many offenses as individuals affected.” State v. Rabe,
96 Wis. 2d 48, 68, 291 N.W.2d 809 (1980). As such, the fact that K.R. was present
when Moore began shooting—somewhere between three and seven shots initially,
according to each of their testimony—means there were two individuals affected by
this incident, which supports the two counts for which Moore was convicted. See
id. Indeed, this court has previously stated that “[i]ntentionally pointing a loaded
gun ready to shoot at another person is conduct imminently dangerous to another.”
State v. Bernal, 111 Wis. 2d 280, 285, 330 N.W.2d 219 (Ct. App. 1983).
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No. 2022AP325-CR
¶17 Furthermore, the additional shots fired by Moore when he was looking
for N.J.D., as testified to by both N.J.D. and K.R., is a “new volitional departure”
from Moore’s initial shots. See Koller, 248 Wis. 2d 259, ¶31. Although they
occurred shortly after the initial shots by Moore, it can still be considered a separate
volitional act within that time frame, see Harrell, 88 Wis. 2d at 572, particularly
because it endangered others who may have been in the vicinity, see Rabe, 96
Wis. 2d at 68.
¶18 Therefore, we conclude that the charges against Moore were not
identical in fact. When charges against a defendant are different in fact, “we apply
the presumption that the legislature intended multiple punishments.” Schaefer, 266
Wis. 2d 719, ¶54. That presumption, however, may be rebutted by the defendant
by “show[ing] a clear indication of legislative intent to the contrary” in order to
satisfy the second prong of the multiplicity test. Id.¶19 Moore does not present any such argument for our consideration. We
generally do not consider arguments that are not adequately briefed, nor do we
develop arguments for parties. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992).
¶20 Instead, Moore argues that his trial counsel should have objected to
the jury instructions and verdict forms, which he asserts violated his right to a
unanimous verdict because they did not include the specific acts alleged for each
charge against him. The principle behind the requirement for a unanimous verdict
is to “‘ensure[] that each juror is convinced beyond a reasonable doubt that the
prosecution has proved each essential element of the offense.’” State v. Johnson,
2001 WI 52, ¶11, 243 Wis. 2d 365, 627 N.W.2d 455 (citation omitted).
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No. 2022AP325-CR
¶21 In support of this argument, Moore cites to State v. Marcum, 166
Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992). In Marcum, the defendant was
charged with several counts of sexual assault; three of the counts occurred during
the same general time frame. Id. at 914-15. Of those three counts, the defendant
was convicted of one and acquitted of the other two, giving rise to the unanimity
issue. Id. at 915. This court discussed the distinction between charging multiple
counts of illegal sexual contact where there are separate volitional acts, compared
to “several separately enumerated acts of illegal sexual conduct [that] were
committed as one volitional act,” where the crime was charged as “one count as a
continuing offense” with the separately enumerated acts “simply represent[ing]
alternative means of committing the crime[.]” Id. at 921. We concluded that
because the method of charging utilized by the State in Marcum was several
separate counts, it had “left the door open” as to which particular acts were to be
attributed to each count, which allowed for the possibility of different jurors
attributing a certain act to different counts. Id. at 919-20. We determined this to be
a due process violation based on the unanimity requirement. Id. at 920.
¶22 That is not the case here. As explained above, Moore was charged
with different crimes for committing different volitional acts, and there were
different victims or people affected by those acts: N.J.D., who was shot; K.R., who
Moore initially pointed his gun at; and other “human beings” who may have been
in the area when Moore was shooting as he looked for N.J.D. Thus, there was no
danger that different jurors could apply the same volitional act to both the reckless
injury count and the recklessly endangering safety count, as in Marcum. See id. In
other words, this is not a case where the multiplicity challenge is based on the
question of whether the statute under which the defendant is charged “creates
multiple offenses or a single offense with multiple modes of commission.” See
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No. 2022AP325-CR
State v. Derango, 2000 WI 89, ¶14, 236 Wis. 2d 721, 613 N.W.2d 833; Johnson,
243 Wis. 2d 365, ¶¶11-12. Rather, the standard instruction for jury unanimity, as
provided by the trial court here, was sufficient. See WIS JI-CRIMINAL 515; see also
Marcum, 166 Wis. 2d at 918.
¶23 Therefore, we conclude that the charges brought against Moore were
not multiplicitous and his right to a unanimous verdict was not violated. As a result,
he has not established that his trial counsel was ineffective for failing to raise these
issues. See State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d
441 (“Failure to raise an issue of law is not deficient performance if the legal issue
is later determined to be without merit.”). Thus, the trial court did not err in denying
Moore’s postconviction motion without a hearing. See Allen, 274 Wis. 2d 568, ¶9.
Accordingly, we affirm.
By the Court.—Judgment and order affirmed.
This opinion shall not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).
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