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Other-Acts Evidence: Criminal-Enterprise Activity; Exculpatory Evidence: Disclosure in Fact Made; Appellate Procedure: Incomplete Record Supports Trial Decision

State v. Michael Anthony Lock, 2012 WI App 99 (recommended for publication); case activity

Other-Acts Evidence 

Lock was tried and convicted for homicide, kidnapping and possession with intent to deliver. The State elicited testimony from numerous witnesses to the effect that Lock headed a vast criminal enterprise, of which these crimes were a part in that the two homicide victims were drug dealers, whom Lock killed (or ordered killed) over drug money. Lock argues that individually these items of evidence violated the extrinsic-misconduct rule, § 904.04(2)(a), and collectively violated his due process right to fair trial. The court of appeals, discussing each such witness separately, holds that the testimony was either admissible or, even if inadmissibility is assumed, harmless. The court applies to each of these ten witnesses the familiar three-step analysis of State v. Sullivan, 216 Wis. 2d 768, 772–73, 576 N.W.2d 30 (1998) and State v. Marinez, 2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399. This very fact-intensive discussion resists efficient summary. As for extraction of any general principles, it may simply be that  § 904.04(2)(a) isn’t much if any of a buffer when ongoing, large-scale criminal activity is alleged. A flavor:

¶48      Kern’s testimony that Lock was a “large drug dealer” and “involved in the drug trade” was not new evidence to the jury.  The basis for each of the charges against Lock was drug related and many witnesses, including Lock, testified that he sold drugs … . As such, Kern’s testimony that Lock was a “large drug dealer” and “involved with the drug trade,” while probative of the ongoing relationship between Lock and Melendez-Rivas, was not unduly prejudicial because it merely duplicated testimony already known to the jury.  See Marinez, 331 Wis. 2d 568, ¶19 (opposing party must demonstrate “that the probative value of the [other-acts] evidence is substantially outweighed by the risk or danger of unfair prejudice”).

¶56      Jackson’s testimony that Lock was the head of a criminal organization involved with large drug transactions, prostitution, mortgage fraud, and robberies, and for which Jackson had worked since the 1990s was properly admitted and relevant to demonstrate Lock’s motive (to keep his criminal enterprise in operation) and his intent (to assert his authority over those who were unwilling to cooperate in that enterprise). See Wis JI—Criminal 275 (setting forth “motive” and “intent” as proper purposes under Sullivan).  …  The probative value of Jackson’s testimony with respect to Lock’s criminal organization was not outweighed by unfair prejudice, particularly given that Jackson was a low-level player in Lock’s criminal organization and what the jury already knew about Lock’s extensive drug activity.  See Sullivan, 216 Wis. 2d at 772-73.

¶70      Like Jackson’s testimony, Hankins, Jr.’s testimony that he and Lock had participated in other robberies and drug deals, and his testimony on how they generally operated, was admissible other-acts evidence because it established Lock’s motive to commit the crimes (to keep his criminal enterprise in operation) and his intent (to assert his authority over those who might be less willing to cooperate in that enterprise).  Additionally, Hankins, Jr.’s testimony of Lock’s lavish lifestyle set forth an additional motive to commit the crimes (to maintain his lavish lifestyle).  The probative value of that testimony was high and greatly outweighed any prejudice.  See id., 216 Wis. 2d at 772-73.

¶78      Furthermore, any suggestion by the State during Hankins, Sr.’s testimony that Lock was prostituting Shalonda was not unfairly prejudicial.  The jury had already heard Younker’s testimony that Lock used Shalonda as part of a “monkey hustle” to lure Melendez-Rivas to Milwaukee.  Younker defined a “monkey hustle” for the jury:  “A monkey hustle is where you have a person and a female in the room, a hotel room, or whatever place, and the female — the victim is expecting some type of sexual favors, and they get all sexually excited and whatnot thinking about this and are not aware of what really is going to happen to them.  It’s a set up.”  Furthermore, Jackson, when confronted at trial with the fact that Lock had allegedly had sex with his ex-wife, told the jury “[it] was a rumor … [b]ut, I mean, I was intimate with [Lock’s] girls, too, that how it go” with “our business, prostitution….  You sleep with mine, I sleep with yours.”  As such, the jury was already aware that Lock was allegedly involved with prostitution.

None of the challenges are successful; the court deems several harmless at best, ¶¶52, 57, 67, 83.

Brady Exculpatory Evidence Disclosure 

The State didn’t violate Brady with respect to a prosecutorial offer to a witness, given the lower court’s finding that the details were in fact disclosed to the defense:

¶105   We are to accept the postconviction court’s findings of historical fact unless they are clearly erroneous.  Sturgeon, 231 Wis. 2d at 496.  Here, the postconviction court’s finding that defense counsel received the proffer letter to Jackson before trial is supported by the testimony at the postconviction hearing.  As such, the State did not violate Brady for failing to disclose the letter.  See id., 373 U.S. at 87.

¶106   Furthermore, defense counsel successfully elicited testimony from Jackson demonstrating for the jury that Jackson was not being prosecuted for his crimes.  The fact that the terms of his agreement with the State were memorialized in a letter is irrelevant.  Because the evidence was not material, the State was not obligated to disclose it.  See Harris, 272 Wis. 2d 80, ¶¶12-13.

Same argument, different witness, same result, ¶119 (lower court finding that defense was aware of favorable terms extended to witness not clearly erroneous). Nor was Brady violated by failure to disclose a minor witness’s motive for seeking revenge against Lock, ¶109: “Other more involved participants in the crimes, including Davis, Lee, and Hankins, Jr., provided eyewitness testimony of the details of the crimes themselves.  The evidence against Lock was overwhelming even without Jackson’s testimony.”

Lock also argues a violation of reciprocal discovery, § 971.23, based on the State’s failure to disclose statements Lock allegedly made to one of its witnesses – the State says the witness was on rebuttal and therefore fell outside reciprocal discovery obligations, but the court doesn’t reach the merits, concluding that any error was harmless, ¶123. Test for measuring this sort of issue recited, State v. DeLao, 2002 WI 49, ¶¶14-15, 252 Wis. 2d 289, 643 N.W.2d 480.

Appellate Procedure – Record on Appeal

¶87 n. 13: It is the appellant’s “responsibility to ensure that the record is sufficient to address the issues he raises on appeal. See State v. McAttee, 2001 WI App 262, ¶5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774; Wis. Stat. Rule 809.15(1)(a)9. …  When an appeal is brought on an incomplete record, we assume the record supports every fact essential to sustain the trial court’s decision.  Suburban State Bank v. Squires, 145 Wis. 2d 445, 451, 427 N.W.2d 393.  Therefore, we assume that the trial court properly admitted the tape recording into evidence.”

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