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No felony witness intimidation without proof of felony charges

State v. Gary Abdullah Salaam, 2014AP2666-CR & 2667-CR, 9/13/2016, District 1 (Not recommended for publication); case activity (including briefs)

Salaam raises four claims challenging his convictions, at jury trial, of recklessly endangering safety, being a felon in possession of a firearm, and three counts of witness intimidation. The court affirms as to the first two counts but finds insufficient evidence as to the witness intimidation charges.

Salaam’s ex-girlfriend T.A. and two of her associates reported that Salaam had fired four shots at T.A. while shouting “Die Bitch!” (¶2). While in jail awaiting trial, Salaam made three calls to T.A. importuning her not to cooperate with his prosecution, leading to the witness intimidation counts. (¶3).

Salaam first asserts that the trial court erred in joining, and declining to sever, the witness intimidation counts and the two counts related to the shooting. The court of appeals disagrees, relying on Wis. Stat. § 971.12(1)’s third joinder ground: charges “based … on 2 or more acts or transactions connected together”:

It is clear in this case that the witness intimidation charges were intertwined with the recklessly endangering safety and felon in possession of a firearm charges. The reckless endangerment and felon in possession charges were set for a preliminary hearing on November 17, 2011. As a condition of release, the trial court ordered Salaam not to have contact with T.A.—the person he recklessly endangered with a firearm. However, on November 15, 2011, two days before the preliminary hearing, Salaam placed three phone calls to T.A. in which he discouraged T.A.’s cooperation. During those calls, Salaam told T.A. to “stay in the house,” that the police were looking for her, not to go to “that building,” and to “stay off Layton” because his “life depend[ed] on it.” T.A. told Salaam that she would not go to court and kept her word by failing to appear at the hearing, despite receiving a subpoena to appear. The joinder was proper. Given the propriety of the initial joinder, it is presumed that Salaam suffered no prejudice when the trial court refused to sever the charges. See State v. Linton, 2010 WI App 129, ¶20, 329 Wis. 2d 687, 791 N.W.2d 222. Because of the substantial overlap in evidence, we agree with the trial court “that the prejudice to the defendant has got to be quite high to override the public’s interest in the efficiency and in not basically trying a case twice.” The trial court properly exercised its discretion.

 (¶20).

Salaam also challenges the admission of testimony about a threatening phone call he allegedly made to T.A.’s mother, who did not testify, as a violation of his confrontation right. The court of appeals declines to address the argument, concluding that the testimony of multiple eyewitnesses to the shooting would render any error harmless. (¶23). Similar reasoning fells Salaam’s claim that the circuit court should have allowed him access to T.A.’s mental health records and admitted at trial evidence related to her juvenile court history. In the court of appeals’ view, the three women (including T.A.) who described seeing Salaam fire the shots rendered any concerns about T.A.’s credibility more or less irrelevant. (¶¶29-30).

Salaam fares better with his challenge to his witness intimidation counts. One of the elements of these offenses is that the intimidation be carried out “by a person who is charged with a felony in connection with a trial, proceeding, or inquiry for that felony.” See WIS. STAT. §§ 940.42, 940.43(7); WIS JI—CRIMINAL 1292. While the underlying facts certainly support this element, the state concedes on appeal that it neglected to present evidence to the jury that the counts related to the shooting were felonies. (¶33). The state submits that it did prove up misdemeanor witness intimidation, but the court of appeals cites State v. Myers, 158 Wis. 2d 356, 359, 461 N.W.2d 777 (1990), for the proposition that it cannot “direct the trial court to enter a judgment of conviction of a lesser-included offense when a jury verdict of guilty of the greater offense is reversed for insufficient evidence and the jury was not instructed on the lesser-included offense.” Accordingly, it orders these convictions vacated.

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