COURT OF APPEALS
DATED AND FILED
April 27, 2010
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
Earnest Jean Jackson,
from a judgment and an order of the circuit court for
¶1 BRENNAN, J. Earnest Jean Jackson
appeals from a judgment entered after a jury found him guilty of first-degree
intentional homicide as party to a crime and mutilating a corpse, and from an
order denying his motion for postconviction relief.
¶2 The background facts are those testified to at the second
¶3 On December 23, 2003,
¶5 When it appeared that Crockett was dead,
¶6 Criminal charges were brought against
¶7 Following the second trial, a jury found
Standard of Review
¶9 A defendant claiming ineffective assistance of counsel must
establish that: (1) the lawyer was
deficient; and (2) the defendant suffered prejudice as a result. Strickland v.
¶10 To prove deficient performance, the defendant must point to
specific acts or omissions of the lawyer that are “outside the wide range of
professionally competent assistance.”
¶11 To satisfy the prejudice aspect of Strickland, the defendant
must demonstrate that the lawyer’s errors were sufficiently serious so as to
deprive him or her of a fair trial and a reliable outcome, Johnson, 153 Wis. 2d
at 127, and “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different,” Strickland, 466
¶12 We review the denial of an ineffective assistance claim as a
mixed question of fact and law. Johnson,
¶13 Jackson alleges he was denied the effective assistance of
counsel because his trial counsel failed: (1) to move for dismissal on double jeopardy
grounds; (2) to object to the medical examiners’ testimonies on Sixth Amendment
grounds; (3) to cross-examine Nina Wheeler about alleged inconsistencies
between her testimony at the first trial and her testimony at the second trial;
and (4) to object to portions of Detective Scott Gastrow’s testimony on hearsay
grounds. We will address each of
A. Double Jeopardy
¶15 McAfee testified for the State at
¶17 To complete the record, after the court had granted the motion for mistrial, homicide detectives Scott Gastrow and Erik Villarreal testified on the record. Detective Gastrow testified that in May or June 2006 a detective from the drug investigation unit had given him a disk containing the conversation between Jackson and McAfee retrieved from the wire. Detective Gastrow stated that he never listened to the disk because the detective who gave it to him “indicated … that there was nothing on it.” He did not place it in the homicide file that was given to both the State and the defense because he “didn’t believe it had any evidentiary value to the case whatsoever.” Detective Villarreal testified that he was aware that McAfee had worn a wire as part of a drug investigation but that he did not recall informing the prosecutor of that fact, and he did not make a report of that knowledge.
¶18 “The double jeopardy clause of both the federal and state
Constitutions protects a defendant’s right to have his or her trial completed
by a particular tribunal and protects a defendant from repeated attempts by the
State to convict the defendant for an alleged offense.” State v. Jaimes, 2006 WI App 93, ¶7,
¶19 The court has carved out an exception to this general rule,
finding that the double jeopardy clause bars a retrial “when a defendant moves
for and obtains a mistrial due to prosecutorial overreaching” which requires
the defendant to demonstrate that: (1)
the prosecutor’s action was intentional—in other words, the prosecutor had a
“culpable state of mind” and “an awareness that his activity would be
prejudicial to the defendant”; and (2) “the prosecutor’s action was designed
either to create another chance to convict … or to prejudice the defendant’s
rights to successfully complete the criminal confrontation at the first
¶20 “Determining the existence or absence of the prosecutor’s
intent involves a factual finding, which will not be reversed on appeal unless
it is clearly erroneous.”
¶21 Jackson argues that the actions of the detectives are imputed
upon the prosecutor and that because the detectives’ failure to disclose the
information was intentional—because they knew about the disk prior to trial and
made a conscious choice not to disclose it to the prosecutor—the prosecutor’s
failure to disclose was also intentional.
¶22 First, we have held that “an officer’s wrongful [actions] will
not be imputed to the prosecutor in the absence of evidence of collusion by the
prosecutor’s office intended to provoke the defendant to move for a
¶23 Second, we can also infer that the failure to disclose was not
designed “to provoke a mistrial” because the prosecutor opposed the defense’s
request for a mistrial. See id.,
¶8. That is, the failure to disclose the
disk was not “designed … to create another chance to convict … ‘or to prejudice
¶24 Third, even if Jackson had been able to establish that the
detectives’ actions in this case could be imputed upon the prosecutor, he has
presented no evidence that the detectives failed to disclose the contents of
the wire with “an awareness that [their] activity would be prejudicial to the
defendant.” See id., ¶8. The only evidence on record of the
detectives’ state of mind is Detective Gastrow’s testimony that he never
listened to the disk because the detective who gave it to him “indicated … that
there was nothing on it,” and that he did not place it in the homicide file
that was given to both the State and the defense because he “didn’t believe it
had any evidentiary value to the case whatsoever.” This evidence is certainly not demonstrative
of a culpable state of mind, and
¶25 Even if his trial counsel had moved to dismiss the complaint,
the motion would have been denied. Accordingly,
B. Confrontation Clause
¶26 Next, Jackson asserts that he was denied effective assistance
of trial counsel because his trial counsel failed to object to Dr. Christopher
Poulos’ and Chiara Wuensch’s testimonies.
¶27 “Determining whether a court’s action violated a defendant’s
confrontation right is a question of constitutional fact.” State v. Barton, 2006 WI App 18, ¶7,
¶28 In State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d
919, the Wisconsin Supreme Court held that “[a] defendant’s confrontation right
is satisfied if a qualified expert testifies as to his or her independent
opinion, even if the opinion is based in part on the work of another.” Barton, 289
¶29 Dr. Poulos was a highly qualified expert in the field of
forensic pathology—someone “who specializes in conducting autopsies or post
mortem examinations, and in so doing … attempt[s] to determine a cause … of
death.” He testified that he was an
assistant medical examiner in
¶30 Dr. Poulos testified that in his opinion, Crockett’s body was burned post-mortem, the body’s head and hands had been cut off, and the cause of Crockett’s death was undetermined. He testified that his opinions were based “both upon the report [compiled by pathologist Mark Witeck] and [Dr. Poulos’] interpretation of the photographs taken at the time.”
¶31 Dr. Poulos testified that he concluded that Crockett’s body was burned after he was killed based upon the apparent charring where the head had been severed from the body and the low levels of carbon monoxide in the blood. More specifically, he testified that in his opinion, the low levels of carbon monoxide in the body’s blood “indicate that the burning took place after the person had been dead and stopped breathing and therefore could not inhale the carbon monoxide to accumulate it in [his] blood.” And he testified that charring on the body’s neck could only occur if the neck had been severed from the body prior to burning. While both facts were contained within the autopsy report, the conclusions drawn from those facts were Dr. Poulos’ own based upon his experience and training.
¶32 Like the author of the autopsy report, Dr. Poulos determined that the cause of death was undetermined. However, he testified that while he agreed with that conclusion his determination was based “on [his] own expertise.” In other words, Dr. Poulos independently concluded, based upon the facts set forth in the autopsy report and his own training and experience, that the cause of death was undetermined.
¶33 Finally, Dr. Poulos’ conclusion that the head and hands were cut off of the body was based on “tool marks” observed by the author of the autopsy report on the body’s wrists. Dr. Poulos testified that the “tool marks” or “cuts within the skin” provided “evidence of some sort of an instrument such as a knife or a saw blade, most probably a knife being used to cut in tool marks or the characteristic impression these leave in the bone.” While the evidence of the marks was contained in the autopsy report, the conclusion as to the cause of the marks was Dr. Poulos’ own, based on his experience and training.
¶34 Because Dr. Poulos’ testimony did not violate
¶35 Wuensch was a highly qualified DNA analyst employed by the
¶36 The majority of Wuensch’s testimony was based upon reports she
personally prepared as the lead DNA analyst in this case. She testified that she had examined blood
swabs taken from Noble’s apartment and compared them to a sample of Crockett’s
mother’s blood. Her comparison
demonstrated a parental relationship between Crockett’s mother and blood found
on the kitchen wall in Noble’s apartment.
¶38 The hit report created by Haase merely reported whether the DNA
profile created by Wuensch matched any other profiles in the system. Wuensch did not act as a mere conduit for
Haase, but instead testified to her opinion based on the database’s finding
that the profile she collected matched the profile collected from the human
remains found in Illinois. She was
interpreting the findings in the report that were compiled based upon her
work. Based upon her training and
experience, she independently concluded that the remains found in
¶39 Because Wuensch’s testimony did not violate
C. Impeachment of Wheeler
¶40 Next, Jackson argues that his trial counsel was ineffective for
failing to cross-examine Wheeler, Crockett’s ex-girlfriend and the mother of
his son, about the source of Crockett’s money.
¶41 At the first trial, Wheeler testified in pertinent part, as follows:
Q And there came a time that you learned of some money that was taken from Mr. Jackson?
Q Then you called Mr. Jackson to talk to him about that, didn’t you?
A Yeah. I was calling him looking for Matt, and he had told me that Matt had got some money from winning gamble games. Asking me did I know of [the] money, and I … didn’t know that was what happened at the time. So he was basically trying to get information out of me, but I didn’t know that Matt had stole any money from him at the time.
Q Mr. Jackson had asked you whether Matthew had won some money gambling?
Q And when you talked to Mr. Jackson on this money issue, did you tell him that Matthew had suddenly come into a lot of possessions?
A Well, he asked me. He had told me that he won some money gambling. When he asked me, I … told him, yeah, because I thought that’s what happened. I didn’t know.
A I didn’t know what had happened until he actually came over there and told me that Matt had stole the money from him.
Q Did Matthew tell you what happened?
A After. Yeah. He told me that he took the money or whatever.
¶42 At the second trial, Wheeler’s testimony was briefer. Regarding the source of the money, she only testified as follows:
Q What do you recall [Crockett] purchasing or having at this point?
A I really wasn’t around him at the time, but when he came back around me he did have like a lot of clothes and shoes and like video games, stuff like that.
Q Did you become aware of where he got this money?
Q What did you know about?
A After the fact he had let me know that he had took it from Earnest Jackson.
¶44 First, Wheeler’s testimony at the first trial is not
inconsistent with her testimony at the second trial. At the first trial, Wheeler testified that
¶45 Second, even if Wheeler’s testimony at the first and second
trials was inconsistent,
D. Detective Gastrow’s Hearsay Testimony
¶46 Finally, Jackson argues that his trial counsel was ineffective for failing to object to “McAfee’s hearsay statements” offered through Detective Gastrow’s testimony. We disagree.
¶47 On December 20, 2004, Detective Gastrow interviewed McAfee about Crockett’s murder. The contents of the interview were summarized in a fifteen-page statement. Following the interview, Detective Gastrow read the statement to McAfee, who made changes where necessary. McAfee initialed the changes and then signed the statement.
¶48 The State called McAfee at trial and questioned her about her involvement
in disposing of the body, her observations of
¶49 Jackson broadly argues that Detective Gastrow could not testify
to “McAfee’s hearsay statements” because McAfee’s testimony that she did not
recall all of the details of her statement to Detective Gastrow did not qualify
her testimony as inconsistent with her prior statement under Wis. Stat. § 908.01(4)(a)1.
¶51 The State responds that those portions of Detective Gastrow’s testimony about McAfee’s statement were admissible under three theories: (1) as prior inconsistent statements under Wis. Stat. § 908.01(4)(a)1.; (2) as statements that are otherwise trustworthy under Wis. Stat. § 908.045(6) (because McAfee was unavailable under Wis. Stat. § 908.04(1)(c) and the statement had significant guarantees of trustworthiness in that she admitted the statement and acknowledged that her answers to the detective were all truthful); and (3) as statements against her penal and social interest under § 908.045(4) (because she admitted to being an accomplice to the mutilation and disposal of the body and exposed herself and her child to Jackson’s hatred or revenge).
¶52 We conclude that even if we assume, without deciding, that
Detective Gastrow’s testimony about McAfee’s statement consisted of
inadmissible hearsay and trial counsel was deficient for not objecting to that
¶54 Accordingly, given that the jury was presented with such strong eye‑witness testimony implicating Jackson, Detective Gastrow’s recollection of McAfee’s statement was not crucial to the jury’s verdict of guilt. Even if trial counsel had succeeded in excluding Detective Gastrow’s testimony—that McAfee told him that Jackson’s clothes were ripped and disheveled after the murder and that Jackson admitted to murdering Crockett—Jackson has not shown “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
Honorable Jeffrey A. Wagner presided over the first and second trial and
ordered that judgment be entered. The
Honorable Jeffrey A. Conen denied
lieu of issuing a detailed written order denying
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Neither of the parties has informed this court of the actual contents of the disk.
 Two years after the Wisconsin Supreme Court decided State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), which reinvigorated the restrictions on the admissibility of hearsay evidence imposed by the confrontation clause. In State v. Barton, 2006 WI App 18, ¶17, 289 Wis. 2d 206, 709 N.W.2d 93, we ruled that Crawford did not overrule Williams in any way.
parties stipulated that “the Lake County Major Crime Task Force did take a
blood sample from the unidentified body [found in
we resolve this appeal on other grounds, we do not decide whether