COURT OF APPEALS
DATED AND FILED
December 23, 2008
David R. Schanker
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.
STATE OF WISCONSIN
IN COURT OF APPEALS
Tramell E. Starks,
from a judgment of the circuit court for
¶1 BRENNAN, J. Tramell E. Starks appeals from a judgment entered after a jury convicted him of first-degree reckless homicide contrary to Wis. Stat. § 940.02(1), and being a felon in possession of a firearm, contrary to Wis. Stat. § 941.29(2)(a) (2005-06). Starks asserts the following claims of error: (1) the trial court erred when it denied his request for the lesser-included offense instruction on second-degree reckless homicide; (2) the trial court should have granted his motion for a mistrial based on an alleged violation of the witness sequestration order; (3) the trial court erred in failing to dismiss the case based on the prosecutor’s failure to turn over information relating to Junebug; and (4) the evidence was inconsistent and therefore insufficient to support the verdict. We reject each of Starks’s claims and affirm.
¶2 On March 31, 2005, there was a confrontation between
Starks and the victim in this case, Lee Weddle.
Starks was waiting in Weddle’s apartment, the lower flat of a duplex
¶3 During and after the shooting, all others in the apartment scattered. The occupant of the upper duplex phoned police to alert them to the struggle occurring in the lower flat and to tell them that gunshots were fired. When police arrived, they found Weddle lying on the kitchen floor in a pool of blood. He was transported to the hospital, where he was pronounced dead as a result of exsanguination. A few days later, police received an anonymous tip that Starks was responsible for the shooting. The tip also alerted police to the fact that Nellum, Rogers and others were present during the incident.
¶4 On April 20, 2005, Nellum was arrested for a domestic violence matter and a parole violation. During initial police interviews with Nellum, he would not give any information to police except to say that it was a “lose-lose situation” for him because the police would not be able to protect him or his family.
¶5 On April 21, 2005, Starks voluntarily talked with police as he had heard they were looking for him. He denied having anything to do with the Weddle murder. On April 22, 2005, Nellum was interviewed again. He told police that he was very afraid of Starks and that during his initial police interviews he was too afraid to tell the police what had happened. Nellum proceeded to tell the police that he was present when Starks confronted Weddle and witnessed the fist fight. At some point, he became very frightened because he felt Starks was going to do something “real crazy.” As Nellum scrambled to leave the flat, he heard four or five gunshots going off. Nellum was released from custody on July 7, 2005. On July 31, 2005, he was murdered.
¶7 Starks was arrested and charged with first-degree intentional homicide as a party to a crime and possession of a firearm by a felon. Starks pled not guilty and the case was tried to a jury in December 2006. At the instruction conference, the State requested the jury be given the lesser-included instruction on first-degree reckless homicide. Starks objected to the request, but stated that if the trial court gave the lesser-included instruction requested by the State, it should also give the lesser-included instruction on second-degree reckless homicide. The trial court decided to give the instruction on first-degree reckless homicide, but found that the evidence did not support also giving the instruction on second-degree reckless homicide.
¶8 The jury convicted on the lesser-included offense of first-degree reckless homicide and also on the felon in possession of a firearm charge. Starks was sentenced to forty-five years on the homicide charge, consisting of thirty-one years of initial confinement followed by fourteen years of extended supervision. He was sentenced to ten years on the firearm charge, consisting of five years of initial confinement followed by five years of extended supervision to be served consecutively. Judgment was entered. Starks now appeals.
A. Lesser-Included Offense.
¶9 Starks argues that the trial court erred when it failed to give the lesser-included offense instruction of second-degree reckless homicide. The State responds that there was no basis in the evidence to charge the jury with the lesser-included offense instruction on second-degree reckless homicide. The trial court found that the facts did not support giving the second-degree reckless homicide instruction. We agree.
criminal defendant is entitled to a lesser-included offense instruction “‘only when there exists reasonable
grounds in the evidence both for acquittal on the greater [offense] and
conviction on the lesser offense.’” State
v. Foster, 191
¶11 A lesser-included offense instruction is not warranted when it
is supported by a “mere scintilla” of evidence.
Ross v. State, 61
¶12 Here, the only difference between first-degree reckless
homicide and second-degree reckless homicide is that first-degree requires
proof of the additional element of “utter disregard for human life.” Compare
Wis. Stat. § 940.02 (first-degree
reckless homicide) with Wis. Stat. § 940.06 (second-degree
reckless homicide); see also State
v. Jensen, 2000 WI 84, ¶¶16-19, 236
¶13 Starks contends that the evidence in the record demonstrates that he shot Weddle below the waist, that Starks believed you could not be charged with homicide if you shot someone below the waist and that he expressed distress when he found out Weddle had died. Starks contends that all of these factors could result in the finding that he did not have the intent to kill Weddle and that he had some regard for Weddle’s life. We review the record to determine if the evidence created a reasonable doubt as to whether Starks’s conduct constituted “utter disregard for human life.”
¶14 In assessing the “utter disregard for human life” element, we
do not focus on Starks’s actual
subjective mental state; rather, we apply an objective standard, reviewing
“what a reasonable person in the defendant’s position would have known.” See
¶15 After Starks stopped shooting, Weddle was clearly seriously
injured and Starks knew that. He could
see Weddle was bleeding and heard him say, “man, you killed me.” Yet, Starks fled the premises, did not phone
for medical help and did not return to offer any assistance. In fact, when asked shortly after the
shooting if Weddle was okay, Starks’s response was “Fuck Lee.” These actions do not leave any reasonable
doubt that Starks showed a complete lack of concern for Weddle’s life. Starks’s conduct in shooting Weddle and in
failing to render any aid to Weddle after the shooting establishes his utter
disregard for Weddle’s life. See State
v. Sutton, 2006 WI App 118, ¶¶20-23, 294
¶16 We also reject as unreasonable Starks’s contention regarding his personal belief that a below-the-waist shooting could not be charged as a homicide. For the lesser-included offense instruction to be given, the evidence must present reasonable grounds for the lesser instruction. Given the number of times Starks shot at Weddle (seven), the fact that after shooting him Starks left Weddle bleeding to death on the floor and later said, “Fuck Lee” in response to a question as to how Weddle was doing, there are no reasonable grounds to find that Starks showed some regard for Weddle’s life.
¶17 In looking at the element of “utter disregard for human life,”
the test is not what Starks subjectively believed, but what a reasonable person
in the same or similar circumstances would know. And even if Starks believed that shooting
below the waist would immunize him from a homicide charge, that is not the same
as showing some regard for Weddle’s life. At best it shows Starks’s regard for Starks’s
life, not Weddle’s. But even if it could
be construed as regard for Weddle, that belief when coupled with the rest of
the facts here fail to meet the objective standard of reasonable evidence of
Starks’s regard for Weddle’s life.
Accordingly, the evidence would not create a reasonable probability that
the jury would acquit on first-degree reckless homicide and convict on
second-degree reckless homicide. Thus,
the trial court did not err in so ruling.
See State v. Estrada, 63
¶18 Starks’s next claim is that the witness sequestration order was
violated when two prosecution witnesses, Trenton Gray and Wayne Rogers, were
transported to the courthouse together.
The State responds that the sequestration order was not violated, but
even assuming it was violated, Starks was not prejudiced by it. The trial court ruled that the prosecutor had
not violated the order, but that the two witnesses were in fact inadvertently
transported from Dodge to
¶19 The prosecutor had sent three faxes to the federal authorities who were holding Gray and Rogers in custody advising them that the two witnesses needed to be kept separate due to the sequestration order. When the Milwaukee County Sheriff went to pick them up from federal custody, the sheriff put them in the same van and then put them in the same booking room. It is clear from the record that the prosecutor was not responsible for Gray and Rogers being transported to court in the same vehicle and that he made several requests to the proper authorities to keep the witnesses separated. There is an insufficient basis in the record for the trial court to have decided there was prejudice or misconduct on the prosecutor’s part.
¶20 The record also shows there was no prejudice. Gray testified that he was in the same van
with Rogers and the same booking room, but that they did not discuss the case,
they were in separate cells and they did not yell through the cells. Gray added that
¶21 In reviewing a trial court’s decision on a motion for a
mistrial, our review involves determining whether the trial court erroneously
exercised its discretion.
¶22 The purpose of sequestration is to separate witnesses so that
they remain true to their own testimony and so they do not influence each
other’s testimony. See State v. Green, 2002
WI 68, ¶40, 253
C. Junebug Issue.
¶23 Starks argues that the trial court erred in denying his motion for mistrial based on the prosecutor’s failure to tell him Junebug’s name. The State responds that the information was not in the exclusive possession of the State and that it was not exculpatory. The trial court denied the motion for mistrial, finding that the evidence was neither exculpatory nor in the State’s exclusive possession. We agree with the trial court that the information was not in the exclusive possession of the State and therefore we do not reach the issue of whether the evidence was exculpatory under either Brady v. Maryland, 373 U.S. 83 (1963) or State v. Harris, 2004 WI 64, 272 Wis. 2d 80, 680 N.W. 2d 737.
¶25 The exculpatory material requested in this case was Junebug’s name. Starks’s trial counsel filed a motion for exculpatory evidence before trial asking for “[t]he name of Junebug, referred to by Trent Gray in his report as the owner of the phone used to call Tramell Starks.” Starks argues that he wanted Junebug’s name “so that he could obtain the cell phone records of Junebug to show that Junebug’s cell phone was never used to call any of the cell phones that Starks owned.”
¶26 The record is uncontroverted that prior to trial, the prosecutor gave Starks Gray’s cell phone directory showing only one Junebug listed and showing that Junebug’s phone number was 745-5349. Additionally, the prosecutor turned over documents showing that the name of the person who subscribed to phone number 745-5349 was Willie R. Gill. Thus, months before trial, the prosecutor gave Starks the information he requested. It was no longer in the State’s exclusive possession.
¶27 Additionally, the prosecutor has no obligation under Brady
to investigate the information further for the defense. Here, long before trial, the defense could
have obtained, or tried to obtain, the phone records of Willie R. Gill or
phone number 745-5349. The defense could
have interviewed, or tried to interview, Willie R. Gill or Starks’s
cousin, Gray. There is nothing in the
record showing that Starks attempted to follow up on the evidence regarding Junebug’s
phone or interview any of the witnesses involved, such as Willie R. Gill
or Gray. The prosecutor is not obliged
to investigate the information for the defense. The evidence was made available to the defense
and Starks did not follow up on it. “Brady
requires production of information which is within the exclusive
possession of state authorities. Exclusive control will not be presumed where
the witness is available to the defense and the record fails to disclose an
excuse for the defense’s failure to question him.” Sarinske, 91
¶28 Starks does not deny he received the phone number and name Willie R. Gill from the prosecutor. But he argues that the prosecutor should have told him that Junebug was Ray Gill. Stark argues that because the federal agent knew two months before trial that Junebug’s name was Ray Gill, the State prosecutor was required to tell Starks that information. The record is clear from the arguments on the motion for mistrial that the prosecutor had no actual knowledge of the federal agent’s information until Gray testified. Trial defense counsel did not dispute that fact. Instead Starks’s trial defense counsel argued that under Brady and State v. DeLao, 2002 WI 49, ¶¶21-24, 252 Wis. 2d 289, 643 N.W.2d 480, the federal agent’s knowledge was imputed to the state prosecutor. Although it is generally true that there are situations where a law enforcement officer’s knowledge is imputed to a prosecutor, this is not one of those cases. Here, because the prosecutor had already given Starks the information of Junebug’s phone number and the subscriber name of Willie R. Gill, it is immaterial that a federal agent knew that Junebug was Ray Gill. Starks already possessed the information of Junebug’s name and could have pursued an investigation into Willie R. Gill and the cell phone records to make whatever impeachment use he could of them at trial. The information was not in the prosecutor’s exclusive possession; the defense had it also.
¶29 Based on the foregoing, we conclude that the trial court did not erroneously exercise its discretion in denying Starks’s motion for a mistrial because the information involved was not in the exclusive possession of the prosecutor.
D. Sufficiency of the Evidence.
¶30 Starks’s last claim is that the evidence was insufficient to support the jury’s verdict because there were so many inconsistencies in the testimony of the various witnesses. Specifically, Starks claims that some of the witnesses who were present in the house at the time of this incident provided inconsistent testimony regarding who exited the house first, whether they left before or after the shooting, and whether Weddle was shot in the living room or kitchen. He also alleges that some of the physical evidence is inconsistent with the witnesses’ testimony. In response, the State refutes much of what Starks contends are inconsistencies. In reviewing a sufficiency of the evidence claim, we:
may not substitute [our] judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.
State v. Poellinger, 153
¶31 Testimony recounting eyewitness accounts to an event often
presents inconsistencies. This is true
because not every witness sees the event in an identical manner. Issues such as inconsistencies in the
testimony or contradictory evidence are for the trier of fact to resolve. See
v. Perkins, 2004 WI App 213, ¶15, 277
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
 A separate record reference recounts Starks’s comment as “Fuck Flea.” “Flea” was Weddle’s nickname. This discrepancy is irrelevant to the resolution of the issues in this case.
to what is shown in the corrected judgment of conviction, Starks was not
convicted as a party to a crime of first-degree reckless homicide. Although he was originally charged as a party
to a crime of first-degree intentional homicide, the charges presented to the
jury did not include the party to a crime allegation. Upon remittitur, the circuit court is
directed to issue a corrected judgment of conviction that does not include the
party to a crime reference. See State v. Prihoda, 2000 WI 123, ¶17,