COURT OF APPEALS
DATED AND FILED
March 3, 2011
A. John Voelker
Acting 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
Anthony M. Smith,
from a judgment and an order of the circuit court for
¶1 BLANCHARD, J. Anthony Smith appeals from the judgment entered on a jury verdict finding him guilty of armed robbery with threat of force as a party to the crime, contrary to Wis. Stat. §§ 943.32(2) (2009-10) and 939.05, and the order denying his motion for postconviction relief.
¶2 Smith first asserts that the trial court erred in granting
the State’s motion to limit cross-examination of a witness called by the State,
DBrittan Jackson, regarding Jackson’s mental health. We conclude that the trial court did not erroneously
exercise its discretion or violate Smith’s confrontation right in limiting
¶3 Smith also asserts that two categories of evidence—one involving tattoos worn by Smith, and the other involving “robbery activities”—were erroneously admitted because, considered together, they constituted improper character evidence. We decline to address this contention because Smith’s argument fails to include relevant record citations, fails to develop a legal argument, and was forfeited by his failure to object at trial. For these same reasons, we decline to address a related argument based on alleged ineffective assistance of counsel.
¶4 Smith also contends that his trial counsel was ineffective in failing to object to testimony from witnesses called by the State regarding the nature of their convictions and pending robbery charges, which, he asserts, violated Wis. Stat. § 906.09. We conclude that failure to make this objection could not have been prejudicial to Smith because such an objection would have been overruled as a matter of law.
¶5 Smith asks us to employ our discretionary power of reversal in the interest of justice based on the alleged errors referenced above, which we decline to do.
¶6 Finally, Smith argues that the evidence presented at trial was not sufficient to sustain his conviction, and that he should be resentenced because his sentence was unduly harsh. We reject each of these contentions, and therefore affirm the judgment and the order of the circuit court.
¶7 On an afternoon in August
2006, two people wearing masks held up Wong’s Wok restaurant in
¶8 The first of the two robbers to enter the restaurant, alleged by the State to be Smith, wore a ghoul mask and brandished a long gun. The second robber in the door, agreed by the parties at trial to be DBrittan Jackson, immediately followed Smith, wearing a bandana over the lower half of his face, with the hood of a hooded sweatshirt pulled up over the top of his head. The second robber pulled out a handgun after entering the restaurant. The two ran out the back door of the restaurant after forcing employees to give them access to money from cash drawers.
¶9 A police detective who happened to be across the street at the time suspected that a robbery of Wong’s Wok was underway and went to investigate. The detective came face-to-face with the two robbers as they ran from the restaurant, and got a look at the long gun held by one of them. Nine days after the robbery, police confiscated a shotgun from Smith, which was admitted as an exhibit at Smith’s trial. The detective testified that this shotgun was consistent in appearance with the long gun that he saw one of the robbers holding.
¶10 The State’s position at trial was that a third man, Dannie
Stallworth, was the getaway driver. The
defense pointed to a lack of physical evidence tying Smith to the crime. Smith also attacked the credibility of
witnesses called by the State who claimed to have knowledge of Smith’s
involvement in the robbery primarily on the grounds that the witnesses falsely incriminated
Smith in order to win shorter sentences for themselves in their own pending criminal
cases. The defense suggested to the jury
that Jackson and Stallworth had committed the robbery, and that
¶11 Because it is relevant to several issues on appeal, we briefly summarize
the substance of
¶13 Jackson, Smith, and Stallworth agreed that after the robbery,
Stallworth would meet Jackson and Smith with the car nearby to make a
getaway. Smith entered the store with
the shotgun, followed by
I. Order Precluding Defense from Cross-examining
¶14 Smith contends that the trial court erred in conditionally granting the State’s motion in limine precluding Smith’s attorney from cross-examining Jackson on two topics: (1) a hearing held nine months before Smith’s trial in the pending case against Jackson regarding Jackson’s competency to stand trial as a criminal defendant for his role in the Wong’s Wok armed robbery, and (2) Jackson’s history of failing to take medications previously prescribed for mental illness, which was an issue that arose in the earlier competency hearing.
A. Court’s Ruling on Mental Health Motion In Limine
¶16 The psychiatrist reported that
¶18 At Smith’s trial, nine months later, defense counsel objected to the State’s motion in limine on the grounds that, if Jackson had been prescribed medications that he was no longer taking at the time of trial, that could affect Jackson’s ability “to remember things, [and to] count [sic-recount?] things.” For purposes of our analysis, we will assume that the attorney’s objection was shorthand for an argument that the order proposed by the State jeopardized Smith’s ability to test through cross-examination Jackson’s capacities to (1) recall events from the time of the armed robbery, and (2) relate facts to the jury.
¶19 The court questioned
¶20 Based on this record, the court conditionally granted the
State’s motion, precluding the defense from asking questions about Jackson’s
“prior mental condition” or his use of medication, at least until “such time as
it becomes relevant through some of the answers he may give or his demeanor,
but right now I don’t see it as an issue.”
During the balance of the trial, defense counsel did not ask the court
to revisit its conditional evidentiary ruling based on
B. Legal Standards Regarding Motion In Limine Ruling
¶21 As a general rule, “[t]he admission of evidence rests within the
discretion of the trial court,” and this court reviews only whether “the trial
court exercised its discretion in accordance with accepted legal standards and
in accordance with the facts of the record.”
State v. Roberson, 157
¶22 Smith contends that the court’s evidentiary ruling violated his constitutional right to confront
witnesses called against him, as guaranteed by the federal and state
¶23 The constitutional standard recognizes that the right to
confront witnesses is “central to the truthfinding function of the criminal
trial.” State v. McCall, 202
¶24 Relevant evidence is evidence that has a tendency to make a
fact of consequence to a case more or less probable. Wis.
Stat. § 904.01. In
determining whether proposed cross-examination is relevant, the issue is whether
it would “be useful to the trier of fact in appraising the credibility of the
witness and evaluating the probative value of the direct testimony.”
¶25 More specific to the question of how the mental health of a
witness might affect the credibility of the witness, our supreme court has determined
that “[i]nquiry into the existence of and treatment for mental affliction is
proper where it appears that a connection exists between the affliction and the
reliability of the witness’s testimony.”
Johnson v. State, 75
Evidence of mental disorder or impairment may be relevant as affecting the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observation accurately and truthfully at trial, or to maintain a clear recollection of it in the meantime.
C. Analysis of Motion In Limine Ruling
¶26 We understand Smith to have objected at trial that he should have
been permitted to cast doubt on
¶27 We conclude that even if Smith did not forfeit his new, broader
argument, it has no merit. The focus of
the State’s motion at trial, and the basis for Smith’s objection to it, was
¶28 Turning to objections Smith made at trial, the capacity-to-recall
and capacity-to-relate claims also fail for lack of sufficient foundations. Smith failed at trial, and now again on
appeal, to identify a specific mental disorder of
¶29 Applying the scrutiny called for under the confrontation
clause, we note that the challenged order was narrow, still allowing Smith to
focus the jury’s attention on inconsistencies in Jackson’s testimony, to argue vigorously to the jury that any inconsistency
undermined its reliability, and to raise questions in the minds of jurors about
¶30 Smith argues that
¶31 Moreover, the fact that the defense did not take up the court’s invitation to renew its motion during Jackson’s trial testimony suggests that Jackson’s manner and affect on the witness stand did not suggest a mental disorder impairing his capacity to provide reliable testimony. Our independent review of the transcript supports the finding of the trial court, in its decision denying Smith’s postconviction motion, that Jackson testified at trial “cogently and intelligently and was thoroughly cross-examined about the armed robbery,” with “no showing that Jackson’s mental infirmity had worsened from his lack of medication” between the time of Jackson’s arrest and Smith’s trial nine months later.
¶32 In a related argument, Smith asserts that his attorney was
ineffective in failing to file a motion in limine “detailing
¶33 A defendant seeking reversal based on alleged ineffective
assistance of counsel must prove both that trial counsel performed deficiently
and that the deficient performance prejudiced the defense case. Strickland v.
the reasons stated above, there is no reasonable probability that, but for
the failure to brief the trial court on this topic in advance of
¶35 Accordingly, we affirm the court’s order denying Smith’s postconviction motion regarding the court’s decision to grant the State’s motion in limine as a discretionary ruling that was in accord with accepted legal standards and the facts of record, and also a decision that fell within the court’s “wide latitude” in this area, and therefore not in violation of Smith’s confrontation rights. Additionally, we affirm the court’s order denying Smith’s postconviction claim that trial counsel was ineffective for failing to pursue his own motion in limine regarding Smith’s mental health.
II. Alleged Improper “Character Evidence”
¶36 In a highly truncated manner, Smith asserts that the trial court erred in permitting the State to present two categories of evidence, and permitted the State to use that evidence to impermissibly present Smith to the jury “as part of a pack of robbers.” The two categories of evidence Smith alludes to are: (1) testimony regarding a tattoo allegedly worn by Smith, and (2) testimony “about robbery related activities” of witnesses called by the State at trial. Smith asserts that evidence regarding Smith’s tattoo and the “robbery related activities,” considered in combination, amounted to improper character or propensity evidence barred under Wis. Stat. § 904.04.
¶37 We do not address this claim of error for three reasons. First, in making this argument Smith fails to
cite evidence from the record supporting his contention, and it is not the role
of this court to try to determine what facts Smith might be referring to. See
v. West, 179
¶38 Second, moving from the factual arena to the legal one, Smith’s
complete failure to make meaningful citation to the record in making this
argument is compounded by the fact that Smith fails to develop an argument that,
under applicable legal standards, there was a violation of Wis. Stat. § 904.04.
¶39 Third, regardless of precisely which evidence Smith may be challenging
in making this argument, he concedes on appeal that he did not
contemporaneously object to the admission of the evidence at issue, and
therefore he forfeited the argument.
¶40 In a section heading only, without matching argument in the short text that follows, Smith contends that trial counsel was ineffective for failing to move for a mistrial “when the State improperly introduced testimony about Smith’s alleged tattoo as well as the implications about other robbery activities of the State’s witnesses.” Again, we are left without record citations or legal authority sufficient to merit consideration of this assertion, and therefore will not attempt to construct an argument for Smith on appeal.
III. Alleged Ineffective Assistance of Counsel for Failing to Object to References to the Substance of Witnesses’ Prior Convictions as a Violation of “Counting Rule” (§ 906.09)
¶41 Smith contends that his trial counsel was ineffective in
failing to object to testimony from witnesses called by the State about the
nature of their convictions and pending robbery charges. Smith argues that this testimony violated Wis. Stat. § 906.09,
as interpreted under
A. Robbery Convictions of Witnesses
¶42 Witnesses called by the State included Jackson, Scenario Richardson, Douglas Fritz, and Eric Gray.
¶43 In addition to the testimony summarized above, Jackson testified that he had entered a plea of guilty to participating in the Wong’s Wok armed robbery, and anticipated being sentenced to four years in prison, followed by three years’ extended supervision.
testified to having one criminal conviction for armed robbery and was awaiting
sentencing in that case. There was
also unobjected-to testimony of a
¶46 Gray testified that he had pled guilty to two counts of “armed robbery, bank robbery in [a] federal case,” and anticipated receiving a federal sentence of ten to twelve years of incarceration, followed by up to five years of supervised release, with the possibility that he could earn a recommendation from the government for a downward departure. Gray testified that he had no specific understanding that the State would try to influence the government recommendation in the federal criminal case, but he hoped that his attorney would alert the federal prosecutor to the fact that he testified at Smith’s trial.
¶47 With that background, Smith contends that he was denied a fair trial because his attorney did not rely on Wis. Stat. § 906.09 to object to the admission of evidence regarding the nature of the convictions of some witnesses called by the State, namely their armed robbery convictions in cases that were pending at the time of Smith’s trial. In addressing these claims in Smith’s postconviction motion, the trial court concluded that Smith could not show that he was prejudiced by this testimony because “the evidence was not elicited to show that the defendant was probably an armed robber as well, but what type of consideration the individual witnesses were receiving in their own cases for testifying against the defendant.” We agree.
¶48 Wisconsin Stat.
§ 906.09 is applied through a method commonly referred to as “the counting
rule.” The general counting rule
provides that when a party attacks the credibility of a witness for
truthfulness by use of prior criminal convictions of the witness, the jury
learns only two facts: (1) that the
witness has been convicted of a crime, and (2) the number of prior
convictions. State v. Smith, 203
¶49 In this case, the prior offenses were not offered by a party seeking to impeach the witnesses. Instead, the witnesses were asked about their pending plea agreements, which necessarily included reference to the charges at issue in those agreements, for the purpose of “fronting” to the jury the potential for bias of these witnesses in favor of the party calling the witnesses, namely the State. The counting rule “applies only where the theory of impeachment is that the witness is less credible because of her criminal record; Wis. Stat. § 906.09 does not apply when the prior conviction is otherwise relevant, as where ... the earlier offense demonstrates bias or is admissible as other act of evidence.” 7 Daniel D. Blinka, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE § 609.1 (3d ed. 2008) (emphasis added); see also State v. Scott, 2000 WI App 51, ¶28, 234 Wis. 2d 129, 608 N.W.2d 753 (life sentence gave witness motive to falsely confess “without risk,” creating bias issue falling outside scope of § 906.09).
¶50 The record supports the State’s argument that the State’s
primary purpose in eliciting this testimony was to take the “sting” out of
anticipated impeachment by Smith regarding an obvious point of bias of these
witnesses that the defense sought to highlight from the outset of the trial. The bias at issue was the witnesses’ belief
that lighter sentences might result from testimony favorable to the State and
unfavorable to Smith. When a witness has
an agreement with the prosecution to testify as part of a plea agreement, the
witness’s understanding of any potential benefits that the witness may gain
from the agreement is unquestionably grounds for impeachment by the
defense. State v. Lenarchick, 74
State cannot attempt to hide this form of bias from the defense or the
¶52 The purpose of exposing this type of bias is not to attack the
credibility of the witness. Instead, the
purpose is to support the witness’s credibility using evidence of bias that the
prosecution must disclose to the defense and that the defense can, and
frequently will, seek to exploit at trial.
See Nerison, 136
¶53 The State’s use of prior convictions here was permissible
because the use was, as required, “limited to a proper evidentiary purpose,
such as the impeachment of trial testimony or to reflect on the witness’
credibility.” Virgil v. State, 84
¶54 Therefore, the failure of Smith’s attorney to object to the challenged evidence on the grounds of a violation of Wis. Stat. § 906.09 could not have unduly prejudiced his case because such an objection should have been overruled as a matter of law.
IV. Request for New Trial in Interests of Justice
¶55 Smith asks that we exercise our discretionary power under Wis. Stat. § 752.35 to reverse his
conviction in the interests of justice on the grounds that the real controversy
was not fully tried. Specifically, Smith
argues that the conditional order limiting
¶56 Smith’s request for discretionary reversal depends in part on
evidence that was admitted but not objected to, and therefore the question is
whether “the jury had before it evidence not properly admitted which so clouded
a crucial issue that it may be fairly said that the real controversy was not
fully tried.” State v. Hicks, 202
¶57 This assertion requires us to briefly address the nature of the tattoo evidence.
Richardson testified that Smith has a tattoo that reads, “NGM,” which
stands for “Niggas Getting Money.”
¶59 Eric Gray testified that Gray, Reynolds, Stallworth, and Smith were among a group of friends during the summer of 2006 who often socialized together. Smith, Stallworth, and Reynolds shared the “NGM” tattoo. Gray testified that “NGM” meant, “People that get money.” When asked how people get money, Gray responded, “Got to survive. Got to struggle through their struggle.”
¶60 We do not believe that this testimony, either alone or together
with the other evidence that Smith challenges, creates a record that the real
controversy regarding the identity of the second armed robber was not fully
tried. It is not probable that justice
has miscarried; individually and collectively the issues identified by Smith as
a basis for a new trial are not substantial.
In making this argument for a new trial, Smith emphasizes alleged error
in granting the State’s motion in limine regarding
V. Sufficiency of the Evidence
¶61 Smith argues that the evidence was insufficient to support the jury’s unanimous conclusion that the State proved beyond a reasonable doubt that he, and not someone else as his attorney contended at trial, was the person who robbed Wong’s Wok at gunpoint with Jackson.
¶62 In considering a claim that a criminal conviction was based on
insufficient evidence, “it is not necessary that [the appellate] court be
convinced of the defendant’s guilt but only that the court is satisfied the
jury acting reasonably could be so convinced.” State v. Koller, 87
not specifically addressing a sufficiency claim in its order denying the
postconviction motion, the trial court expressed a view that trial “testimony
of the defendant’s involvement in the robbery at Wong’s Wok was
overwhelming.” Our own review of the
record supports a conclusion that the evidence was strong. In addition to the heavy impact of
VI. Claim of Unduly Harsh Sentence
¶64 Finally, Smith asserts that his sentence was unduly harsh. A sentence is unduly harsh when it is “so
excessive and unusual and so disproportionate to the offense committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances.” Ocanas v. State, 70
¶65 The trial court sentenced Smith to seven years and six months of initial confinement in prison, followed by five years of extended supervision. Smith asserted as grounds for his motion that there is “no rational basis that can explain” Smith’s sentence as compared with the probationary disposition received by Dannie Stallworth following Stallworth’s misdemeanor conviction (receiving stolen property) for Stallworth’s role in the Wong’s Wok armed robbery as the getaway driver.
¶66 In its order denying relief on this issue, the circuit court stated that it had reviewed the transcript of the sentencing by the trial court and “perceive[d] no erroneous exercise of discretion in imposing a sentence that is slightly more than one-quarter of the maximum penalty provided by statute.” We conclude that the sentence Smith received was reasonable based on the aggravating and mitigating factors cited by the circuit court.
¶67 In this appeal, Smith does not compare and contrast factors relevant to his sentence with those relevant to Stallworth’s sentence. Such comparison is necessary to demonstrate any degree of inequity, much less a shocking disparity. Yet even when considered on its incomplete terms, Smith’s argument fails. Smith’s conduct was more dangerous, and therefore required a more severe sentence, assuming all other factors to be the same between Smith and Stallworth. Stallworth was the getaway driver. In contrast, Smith entered a restaurant while masked, carrying a shotgun and demanding money, and then fled a police detective while armed with the shotgun. In addition, Smith was on probation at the time he committed this armed robbery.
¶68 Furthermore, the record reflects assiduous effort by the trial
court to calibrate Smith’s sentence to Smith’s individual culpability and
rehabilitative needs. See
¶69 The court did not erroneously exercise its discretion in concluding that, based on all relevant factors, Smith’s planned, life-threatening criminal conduct required confinement of seven years, six months as punishment and to protect the community. Accordingly, we affirm the decision of the circuit court to deny the postconviction motion for modification of Smith’s sentence.
¶70 For these reasons, we affirm the judgment of conviction and the order denying Smith’s motion for postconviction relief.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
 Presiding at trial was the Honorable William Sosnay. The postconviction motion was considered by the Honorable Dennis Cimpl.
record does not reflect analysis on this issue by the trial court. It reflects only that the trial court granted
the State’s motion in limine on the grounds that the excluded topics were not
relevant. However, this court will uphold
a discretionary determination if we conclude that the facts of record, when
subjected to the proper legal standards, support the trial court’s decision. See Andrew J.N. v. Wendy L.D., 174
addition, in passing and without citation to applicable legal standards, Smith
asserts that it was deficient performance for his trial counsel to have failed
to “strenuously object” to testimony regarding his tattoo and “robbery
activities” as inadmissible under “Wis.
Stat. § 940.04(1),” by which we take him to mean Wis. Stat. § 904.04(1). This is a vague and undeveloped argument, and
therefore we do not address it.
Character evidence not admissible to prove conduct; exceptions; other crimes. (1) Character evidence generally. Evidence of a person's character or a trait of the person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion ....
(2) Other crimes, wrongs, or acts. (a) Except as provided in par. (b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
 Smith’s primary brief includes a “catch-all” assertion that any and all
alleged errors that this court may deem to have been insufficiently preserved
should be reviewed under the plain error doctrine. The plain-error rule allows appellate courts
to review errors otherwise forfeited by a party’s failure to preserve the error
for review. State v. Mayo, 2007 WI
78, ¶29, 301
Impeachment by evidence of conviction of crime or adjudication of delinquency. (1) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. The party cross-examining the witness is not concluded by the witness’s answer.
(2) Exclusion. Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
(3) Admissibility of conviction or adjudication. No question inquiring with respect to a conviction of a crime or an adjudication of delinquency, nor introduction of evidence with respect thereto, shall be permitted until the judge determines pursuant to s. 901.04 whether the evidence should be excluded.
Section 901.04, referenced in subsection (3), addresses preliminary questions of evidence that are to be determined by the trial court.
 The record also reflects additional, related purposes of the State in eliciting testimony from law enforcement agents relating to the federal-state investigation that produced the pending charges against witnesses at Smith’s trial. The State relied on this testimony to establish the timing of the witnesses’ cooperation with authorities, which could be seen as relevant to an assessment of their bias and motivations, and also as general context, to give the jury some understanding of how the investigation unfolded. Our analysis focuses on anticipated impeachment, however, because that appeared to be the State’s primary purpose. We do not see anything improper in the additional purposes, at least insofar as the State pursued them in this particular case.
 Virgil v. State, 84 Wis. 2d 166, 183, 267 N.W.2d 852 (1978), cites United States v. King, 505 F.2d 602 (5th Cir. 1974), for a relevant proposition, and we follow it, while cautioning that citation to federal precedent in this area requires special care, because Federal Rule of Evidence 609, governing impeachment based on prior crimes, differs in multiple respects from Wisconsin’s “counting rule.”
appeal addresses, in one context, the extent to which the substance of a
witness’s prior convictions may be elicited by the party calling the
witness. We note briefly that this also
occurs in a different but somewhat analogous context in connection with the
counting rule, namely when a party waives the “fact and number” limitation for
tactical reasons on direct or re-direct examination of a witness. See State v. Gary M.B., 2004 WI 33,
Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial ....