COURT OF APPEALS
DATED AND FILED
April 2, 2013
Diane M. Fremgen
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
Desmond Dejuan Laster,
from a judgment of the circuit court for
¶1 FINE, J. Desmond Dejuan Laster appeals the judgment entered after a jury found him guilty of: (1) four counts of first-degree intentional homicide, while armed, and as party to a crime, see Wis. Stat. §§ 940.01(1)(a), 939.63 & 939.05; (2) arson as party to a crime, see Wis. Stat. §§ 943.02(1)(a) & 939.05; and (3) unlawfully possessing a firearm as a previously convicted felon, see Wis. Stat. § 941.29(2). Laster claims the trial court erroneously exercised its discretion when it: (1) allowed the State to challenge his alibi witness, Sabrina Hunt, with what he claimed was irrelevant evidence, by asking if she had committed child abuse at her daycare center; (2) allowed the State to play a jail-recorded phone conversation where Laster called his mom a “mother fucker” and other derogatory names; and (3) denied his request for a mistrial when the prosecutor asked Laster about coaxing Hunt to testify. We affirm.
¶2 In the early morning on
¶3 The downstairs residents awoke to smoke and fire at and called for help. The desk clerk at a nearby hotel said Laster,
Barnes, Robertson and a baby checked into the hotel at The
desk clerk saw Robertson leave the hotel with Laster and the baby at Videotape from the hotel security cameras
confirmed the clerk’s identifications.
The baby was found abandoned at a nearby church at
Sometime that afternoon, Robertson’s cousin, Brad Hoeppner, called her
cell phone. Hoeppner said Robertson
confessed to killing Thompson and her kids with a “couple other people” for
“some guy that she was seeing.” She also
told Hoeppner that she had left the baby at the church. Later the same day, Robertson
was found shot in the head. Two
witnesses saw two black men fleeing the scene of the shooting and getting into
¶4 The police arrested Barnes and he confessed. The police arrested Laster, but he denied taking
part in the crimes. Laster’s
fingerprints, however, matched those found both on the duct tape and a plastic
bag used to suffocate the boys. He was
also identified by the hotel clerk, the hotel videotape cameras show Laster at
the hotel, and he drove a white
¶5 Barnes pled guilty and testified at Laster’s jury trial. He told the jury:
● Laster called him “at about 3:30 a.m.” and “asked [him] to come with him to move his friend out of a house that she was gettin’ kicked out of.”
picked him up in a “white
● When they got to the duplex, Robertson met them and let them in. Laster told Barnes to take the “[t]wo cans of lighter fluid” from “the backseat of the car” into the duplex.
● Laster “punche[d] [Thompson] awake” and demanded money.
robbing Thompson, they duct-taped her and the two boys, and then duct-taped
plastic bags over the boys’ heads.
● They took the newborn baby and supplies with them and, after changing clothes, went to the Diamond Inn. Laster and Robertson tried to check-in, but they did not have any identification so Barnes had to come to the front desk and show his ID.
● Barnes said he left the hotel at , walked to his brother’s house, and told him what happened. At about , Laster picked him up, and the two went to pick up Robertson, with the intent to kill her because they thought she was going to get them caught. When they got out of the car and walked behind a home, Barnes shot Robertson.
● After, they hid the gun “in somebody[’s] basement.”
¶6 Laster, whose defense was that he was not at either crime scene, called Hunt to testify as an alibi witness. Hunt testified that:
● She knew Laster because she was “best friend[s]” with the mother of his kids, Chante Yarbrough. She denied being a good friend of Laster.
● On cross-examination, Hunt testified that she was “not sure of the date.” It “could have been the 27th” “or it could have been the 25th.”
● Hunt had a daycare center where Yarbrough’s four- and two-year-old sons went.
¶7 During cross-examination, the prosecutor asked questions about a recorded conversation Hunt had with Laster:
Q … You said: Shit this little boy, I had hit him shit. That means you hit somebody at daycare, right?
A I didn’t hit nobody at daycare.
Q Then the next thing you say is: I had jack the nigga up in the corner. Do you remember saying that?
Q What does that mean when you jacked the little kid up in the corner?
A I just had him in the corner.
Q Okay. And then you said: And I had Pooter [Laster’s son] givin’ it to him. How is Pooter givin’ it to the little boy in the corner?
A I had Pooter hit him back.
Q You had a child hit another child back in daycare?
Q And that’s the defendant’s son you had hit somebody; is that right?
Q And then it says: I be jumpin’ them, I been them jumpin’ on, I been have them jump there on kids. So you had Pooter’s (sic) son jump on other kids at school?
A No, I have not. Any kids that hit other kids, I tell him to hit them back.
Q Okay. Well, what does this mean: I be havin’ them jumpin’ on. I be havin’ him in there jumpin’ kids?
A If they hit him -- Because he the type of kid that does not hit other kids back. If they are gonna pick on him at daycare and I tell him if they are hittin’ him to hit ‘em back.
Q And it says: I hit him.
A I did not hit no child.
Q But you said that, right?
A No, I don’t recall saying I hit a child.
Q Well, you heard the tape.
A I did not hit a child.
THE CIRCUIT COURT: Let’s move along.
¶8 Laster also testified. During his cross-examination, the prosecutor asked him questions about whether he told his witnesses to “clean up the stuff that you sent” to them, including:
Q And you got really mad at your mom. In fact, you are calling your mom a mother fucker and all kinds of stuff, is that right, on the tape?
[Defense lawyer]: Objection, relevance.
[Prosecutor]: No, it is relevant.
THE COURT: Overruled.
A Yes, yes.
Q Because she threw things away, right?
[Prosecutor]: That’s all I have.
¶9 The prosecutor also asked Laster about pressuring Hunt to testify and telling her not to worry because his lawyer would “lead her”:
Q And then you told Sabrina Hunt don’t worry about what she’s gonna testify to because [Laster’s trial lawyer] will lead her through it, right?
A He had questions for her that she wouldn’t have to worry about answering because … she knew the answers.
Q -- because he’ll lead her through it, right? That’s what you said.
A Yeah but I didn’t tell her what to say.
[Defense lawyer]: Objection to this line of questions.
THE COURT: Sustained. Let’s move along.
Q And then you told Sabrina I will tell you what I want you to testify to when you get down here, right?
A Never. Never said that.
Q You didn’t say that?
A I never said that. No.
¶10 When the prosecutor started to play a recorded phone conversation between Laster and Hunt, Laster’s lawyer objected and demanded to stop the tape. Laster’s trial lawyer asked for a mistrial:
This is an issue that came up and it was understood and I thought there was an agreement that portions of these recordings that referenced me and my involvement in the case and my representation of my client were not going to be played for the jury. And we’ve heard the recordings that reference me, and [the prosecutor] went into a line of questioning about how I was going to take care of a witness and get her through her testimony.
So I believe the impression has been made to this jury that I am involved in or I’m a part of fabricating, or potentially fabricating my client’s case.
And I had thought we had made it very clear that that was not going to be implied and we weren’t going to have evidence that was going to imply it. So now I think the jury has an impression that’s on me that’s going to harm my client’s case and I think it’s tainted the jury and I am moving for a mistrial.
¶11 The trial court ruled that any error could be cured with an instruction. Both sides drafted and agreed to giving the jury the following instruction: “In the trial testimony you may have heard references to the respective parties’ lawyers; this testimony is to be considered only as to the state of mind of the witness, it should not be considered against the lawyers. Both lawyers have properly exercised their duties.”
¶12 As noted, the jury found Laster guilty on all counts.
A. Day-care abuse questions asked of Hunt.
¶13 Laster argues that the questions the prosecutor asked Hunt
about child abuse at her day-care center were irrelevant and unfairly
prejudiced the credibility of his alibi witness. Evidence is relevant when it has “any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence.” Wis. Stat. Rule 904.01.
Admission of evidence is left to the discretion of the trial court. State v. Sullivan, 216
¶14 Here, the trial court found the day care questions relevant to show whether Hunt was biased due to a close relationship with Laster. Inquiring into a witness’s bias is always material and relevant. See State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978). The inquiry here established circumstantial evidence of a relationship between Hunt and Laster that was relevant to whether Hunt would fabricate an alibi to help Laster. Laster has not shown that the trial court erroneously exercised its discretion.
B. Laster’s name-calling.
¶15 Laster also claims admission of evidence that he called his
mother a “motherfucker” and other derogatory names improperly “aroused[d] the
jury’s sense of horror.” He argues that
the names and what his mother threw away do not show consciousness of guilt,
and therefore are not relevant. Again,
evidentiary decisions are discretionary.
See Sullivan, 216
¶16 The trial court did not explain why it overruled Laster’s relevance objection to this evidence. Assuming, but not deciding, that the trial court should have sustained the objection, we conclude that any error was harmless beyond a reasonable doubt. The evidence against Laster was strong: (1) his accomplice testified against him; (2) his fingerprints were found on the murder weapon; (3) his alibi witnesses could not testify with any certainty; (4) eyewitnesses (and a video camera) saw him at the hotel with Robertson and Barnes shortly after the crimes. Further, if anything “aroused[d] the jury’s sense of horror” it was the crimes that the jury found Laster committed, along with Barnes and the murdered Robertson. The contention that having the jury hear that Barnes called his mother a name that is commonly heard in the media somehow made the jury convict an innocent person borders on the frivolous.
¶17 Laster claims that the trial court should have granted his motion for a mistrial. He argues that the trial court improperly allowed the prosecutor: (1) to ask Hunt about Laster’s lawyer “leading” Hunt through her testimony, and (2) to play parts of the recorded jail phone conversations that discussed the lawyer’s representation.
¶18 Whether to grant a mistrial lies within the sound discretion of
the trial court. State v. Ross, 2003 WI
App 27, ¶47, 260 Wis. 2d 291, 317, 659 N.W.2d 122, 134. “The trial court must determine, in light of
the whole proceeding, whether the claimed error was sufficiently prejudicial to
warrant a new trial.” Ibid. Not every error requires a mistrial, and it
is preferred to use less drastic alternatives.
State v. Adams, 221 Wis. 2d 1, 17, 584 N.W.2d 695, 702 (Ct.
App. 1998). As with all discretionary
determinations, we will affirm the trial court if it “examined the relevant
facts, applied the proper standard of law, and engaged in a rational decision-making
process.” State v. Bunch, 191
¶19 The Record here supports the trial court’s decision to deny the request for a mistrial. The trial court determined any error could be corrected with a curative instruction. Both parties agreed and worked together to come up with the language of the instruction. The instruction was read to the jury. We presume the jury followed the curative instruction. See State v. Searcy, 2006 WI App 8, ¶59, 288 Wis. 2d 804, 841, 709 N.W.2d 497, 514. Laster has not shown us any reason to overturn the trial court’s exercise of discretion.
By the Court.—Judgment affirmed.
Publication in the official reports is not recommended.