brief of defendant - appellant

STATE OF WISCONSIN COURT OF APPEALS DISTRICT I _____________________________________________________________________________ STATE OF WISCONSIN, Plaintiff- Respondent, vs. Appeal No. 2020AP001476-CR DAWKINS, SHAWANEE L., Defendant- Appellant Case No. 2018CF002411 ON APPEAL FROM A JUDGMENT OF CONVICTION, ENTERED IN THE CIRCUIT COURT OF MILWAUKEE COUNTY, THE HON. JANET C. PROTASIEWICZ, PRESIDING, AND AN ORDER DENYING POSTCONVICTION RELIEF ENTERED IN THE CIRCUIT COURT OF MILWAUKEE COUNTY, THE HON. JANET C. PROTASIEWICZ, PRESIDING. _____________________________________________________________________________

BRIEF OF DEFENDANT- APPELLANT

__________________________________________________________________ Esther Cohen Lee Attorney for Defendant- Appellant State Bar No. 1002354 11414 W. Park Place, Suite 202 Milwaukee, WI 53224 Cell No. (608) 556-0200 Email: [email protected]

RECEIVED

11-02-2020

CLERK OF WISCONSIN

COURT OF APPEALS

Case 2020AP001476 Defendant-Appellant's Brief Filed 11-02-2020 of 33

TABLE OF CONTENTS

Page

Table of Authorities………………………………………………………………….. i

Statement of the Issues………………………………………………………………. ii

Statement of Oral Argument and Publication……………………………………….. ii

Statement of the Case- Procedural ………………………………………………….. 1

Statement of the Case- Factual………………………………………………………. 4

Argument:

POINT I: The other acts evidence regarding the hospitalization and care of Lamont had been improperly received because the state had not established, by a preponderance of the evidence, that the defendant had been a primary caregiver of Lamont, and it was unduly prejudicial to the defendant, denying her a fair trial……. 15 POINT II: The Court erroneously exercised its discretion in allowing Crystal to testify in the state’s case in chief because the state had failed to give notice to the defense in its two witness lists that it intended to call her as a witness in its case in chief and failed to show good cause for that failure…………………………. 21 Conclusion……………………………………………………………………………. 26 Certificate as to Form and Length……………………………………………………. 27 Certification as to Compliance with Rule 809.19(12)………………………………… 28


TABLE OF CONTENTS OF APPENDIX

Record Appendix Page Page 1. Criminal Complaint, filed May 25, 2018………………………………. R1 A1 2. Information, filed June 5, 2018………………………………………… R9 A5 3. State’s Motion to admit other acts evidence, filed August 21, 2018…… R12 A6 4. Defendant’s Response to State’s motion to admit other acts evidence, filed October 12, 2018…………………………………… R14 A13 5. Defendant’s Motion in limine, filed November 15, 2018……………… R19 A16 6. State’s Witness list, filed November 14, 2018…………………………. R17 A19 7. State’s Amended Witness list, filed March 28, 2019…………………... R25 A20 8. Milwaukee County Medical Examiner’s Investigative Report, dated April 28, 2017………………………………………………… R51 A22 9. Juror question, re: insurance of Lamont………………………………... R27 A61 10. Juror question, re: ages of Georgeann’s children………………………. R62 A28 11. Juror question, re: for receipt of all evidence…………………………… R63 A29 12. Juror question, re: names of babies in two exhibits…………………….. R64 A30 13. Juror question, re: crystal’s medical diagnosis…………………………. R65 A31 14. Verdict sheet, dated May 3, 2019………………………………………. R66 A32 15. Written Explanation of Determinate Sentence, filed July 3, 2019……… R75 A33 16. Judgment of Conviction, filed July 3, 2019…………………………….. R78 A34 17. Notice of Intent to pursue post-conviction relief, filed July 5, 2019…… R81 A36 18. Decision and Order denying defendant’s motion for postconviction Relief, filed August 26, 2020………………………………………... R97 A37 19. Notice of Appeal, filed August 31, 2020……………………………….. R98 A46 20. Order Appointing Counsel, dated August 30, 2020…………………….. R--- A47 21. Certification of Requirements of Appendix……………………………... R---- A48


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TABLE OF AUTHORITIES

Page

State Cases 1. State v. Bastamante, 201 Wis. 2d 562, 549 N.W.2d 746 (1996)………………… 17 2. State v. Gray, 225 Wis. 2d 39, 590 N.W.2d 918 (1999)………………………… 17 3. State v. Gribble, 248 Wis.2d 409, 636 N.W. 2d 488 (2001)…………………….. 17 4. State v. Prieto, 2016 WI App 15m 366 Wis.2d 794, 876 N.W. 2d 154………… 22 5. State v. Sullivan, 216 Wis. 2d 768, 576 N.W. 2d 30 (1998)…………………….. 16 6. Whitty v. State, 34 Wis. 2d 278, 149 N.W. 2d 557 (1967)………………………. 15 Statutes 1. §904.03 Wis. Stats………………………………………………………………. 17 2. §904.03 Wis. Stats………………………………………………………………. 16 3. §971.23 Wis. Stats………………………………………………………………. 22


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STATEMENT OF ISSUES PRESENTED

1. Q. Had the other acts evidence regarding the hospitalization and care of Lamont been improperly received because the state had not established, by a preponderance of the evidence, that the defendant had been a primary caregiver of Lamont, and was it unduly prejudicial to the defendant, denying her a fair trial? A. The Circuit Court answered no. 2. Q. Had the Court erroneously exercised its discretion in allowing Crystal to testify in the state’s case in chief because the state had failed to give notice to the defense in its two witness lists that it intended to call her as a witness in its case in chief and failed to show good cause for that failure? A. The Circuit Court answered no.

STATEMENT OF ORAL ARGUMENT AND PUBLICATION

It is not requested that this appeal be published and oral arguments are not necessary because the issues in this matter may be denied on established principles of law in the State of Wisconsin.

.


1

STATEMENT OF THE CASE- PROCEDURAL

1. The criminal action in this matter commenced with the filing of a Criminal

Complaint against the defendant, Shawanee L. Dawkins, on May 25, 2018, charging her with

Reckless Homicide in the first degree, party to a crime. (Record 1, pp. 1-4; Appendix, pp. A1-

A4). The co-defendant in this matter, Georgeann Pearson, who was the defendant’s sister, was

also charged in a separate Criminal Complaint (Case No. 2018CF002412) with the same offense.

The offense involved the death of a baby, Laquis D, for whom the defendant and her sister had

allegedly been his caretakers.

2. The initial appearance in regard to the defendant was held on May 26, 2018

(R101, pp. 1-8) and the preliminary hearing was waived on June 5, 2018. (R102, pp. 1-4). On

June 5, 2018, an Information was filed against the defendant, charging her with the same offense

that had been charged in the Criminal Complaint. (R9, p. 1; App. p.A5).

3. On August 21, 2018, the State’s Motion to admit other evidence was filed,

requesting that evidence be allowed to be admitted involving the previous hospitalization of an

older child, Lamont D., for whom the defendant and her sister had also allegedly been his

caretaker. (R12, pp. 1- 7; App. pp. A6- A12). On October 12, 2018, the Defendant’s Response

to the State’s Motion to admit other acts evidence was filed on behalf of the defendant. (R14,

pp. 1-3; App. pp. A13- A15).

4. On October 25, 2018, a hearing was held in the Circuit Court of Milwaukee

County, the Hon. David Borowski, presiding, regarding the use of the other acts evidence

involving Lamont D. The Court held that this evidence could be admitted. (R107, pp. 1-12)

5. The Defendant’s Motion in Limine was filed on November 15, 2018, requesting

numerous types of evidence that the state should be prohibited from introducing at the trial and


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that the state should disclose to the defense before trial. (R19, pp. 1-3; App. pp. A16- A18). On

November 14, 2018, the state filed the State’s Witness List. (R17, p. 1; App. p. A19). On March

28, 2019, the state filed the Amended Witness List. (R25, pp. 1-2; App. pp. A20- A21).

6. On December 3, 2018, a conference was held in the Circuit Court at which the

state requested an adjournment of the trial in order to locate a witness. The Court held that there

would not be a severance of the trials of the two co-defendants and that they would be tried

together. The Court also granted the adjournment of the trial. (R109, pp. 1-9).

7. On February 26, 2019, another conference was held in which the state said that

they had located the witness. The state also offered both defendants a plea to the reduced charge

of reckless homicide in the second degree, with the length of prison time to be left up to the

court. However, both defendants rejected the offer. (R110, pp. 1-10).

8. The jury trial commenced in regard to both defendants on April 29, 2019 in the

Circuit Court of Milwaukee County, the Hon. Janet C. Protasieqicz, presiding. The state was

represented by Matthew J. Torbenson, Assistant District Attorney, and the defendant was

represented by Calvin R. Malone. At the close of the trial, on May 2, 2019, the state requested

that the lesser included offence of Reckless Homicide in the second degree be charged in regard

to both defendants. The Court granted that request, and for that reason both the original charge

in the Information and the lesser included offense were charged to the jury. (R119, pp. 10- 14).

9. The trial continued until May 3, 2019, at which time the jury rendered its verdicts.

It found both defendants guilty of the lesser included offense of Reckless Homicide in the second

degree. (R66, p. 1; App. p. A32).

10. On July 3, 2019, the defendant appeared in the Circuit Court of Milwaukee

County for sentencing, the Hon. Janet C. Protasiewicz, presiding. Mr. Torbenson represented the


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state and Mr. Malone represented the defendant. (R122, pp. 1-39). At that time, the defendant

was sentenced to 4.5 years, with 1.5 years of initial confinement and 3 years of extended

supervision. (R122, p. 38). A Written Explanation of Determinate Sentence was filed on that

date. (R75, p. 1; App. p. A33). On July 3, 2019, the Judgement of Conviction was filed. (R78,

pp. 1-2; App. pp. A34- A35).

11. On July 5, 2019, a Notice of Intent to pursue postconviction relief was filed on

behalf of the defendant. (R81, p. 1; App. p. A36). On December 20, 2019, an Order Appointing

Counsel was filed, assigning Esther Cohen Lee as appellate counsel to represent the defendant.

12. On May 18, 2020, a Postconviction Motion to Vacate Defendant’s Conviction and

for a New Trial was filed on behalf of the defendant. (R84, pp. 1-20). On July 24, 2020, the

State’s Response to the Defendant’s Motion for Postconviction Relief was filed. (R95, pp. 1-9).

On August 26, 2020, the Court issued its Decision and Order Denying Defendant’s Motion for

Postconviction Relief. (R97, pp. 1-9; App. pp. A37- A45).

13. The Notice of Appeal was filed on August 31, 2020. (R98, p. 1; App. p. A46).

On August 30, 2020, an Order Appointing Counsel was filed, assigning Esther Cohen Lee to

represent the defendant in regard to his appeal in the Court of Appeals. (R---; App. p. A47).

14. It should be noted that on July 11, 2019, the co-defendant, Georgeann Pearson,

appeared in the Circuit Court of Milwaukee County for sentencing, the Hon. Janet C.

Protasiewicz, presiding. She was sentenced to 9 years, with 6 years of initial confinement and 3

years of extended supervision.


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STATEMENT OF THE CASE- FACTUAL

A. The background of the defendant and her living conditions at 3427 N. 17th Street in Milwaukee

At the time of the incident in this matter, involving the tragic death of eight month old,

Laquis D., the defendant was 48 years old and had no prior criminal record. The defendant was

born in Taycheedah Correctional Institution because her mother, who was then seventeen years

old, was an inmate there. (R122, p. 14).

The defendant had an horrendous childhood, living in the house with her mother and

sisters. Her mother would frequently bring men to the house who would sexually abuse her.

When she was seventeen years old, she got pregnant and had a daughter. (R122, pp. 15-17).

This caused the defendant to quit school in the eleventh grade. The defendant would eventually

have four daughters and never once had there been any issues or reports of neglect in any manner

of these four children.

On April 9-10, 2017, the defendant lived at 3427 N. 17th Street in Milwaukee, a two

story, single family, house with a basement. On that date, the following people were living in

that house: the defendant’s sister, Georgeann Pearson, who was 42 years old, and six of her eight

of her children. (R118, pp. 41, 62, 74, 87). One of her grandchildren and one of the defendant’s

children also there. (R118, pp. 87, 07).

In the basement area, there were two sleeping areas. The defendant slept in one of those

areas, on a mattress, and Laquis’s mother, Crystal, slept in the other area, on a mattress. (R116,

p. 12). Crystal had two children, Lamont D., age two, and Laquis D. and they slept in the

basement with their mother. (R199, pp. 71, 103).

There were reportedly 12 people living in that house (some of them off and on) on April

9-10, 2017, all members of the same family, including the infants. It was, in short, a very chaotic


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situation. It did not appear that any of them, including all of the adults and their adult children,

were paying sufficient attention to Laquis. The baby’s mother, Crystal, was not able to

adequately take care of him.

After this case was over, Crystal was finally appointed a guardian, Patrice Butler. Ms.

Butler testified that Crystal had severe cognitive delays and operated at the level of a middle-

schooler. (R117, pp. 18, 20). Her mother had had Down Syndrome. (R115, p. 66). She said

that Crystal had difficulty retaining knowledge and could not make decisions for herself, at least

not the best decisions. (R117, p. 20). Crystal had been living with her brother but in 2013, he

brought her to this house and never came back to get her. (R118, pp. 119, 121). Crystal is a

cousin to the defendant and Georgeann, who are sisters. (R116, p. 83).

B. The events of April 9-10, 2017 involving Laquis D.

According to a statement allegedly made by the defendant on April 10, 2018, to Lauren

Borkenhagen, a social worker with the Milwaukee Child Protective Services, she and Georgeann

had taken the responsibility of taking care of Laquis. (R116, p. 15). The defendant told her that

she had fed Laquis at 7:00 a.m. on April 9. (R116, p. 16). Georgeann told Borkenhagen that the

baby drank Similac formula and that Crystal showed her the formula that they had been using.

(R116, pp. 14,21).

Detective Jeffrey Sullivan, who had interviewed the defendant at the hospital on April 10,

shortly after the baby had died, testified that the defendant had told him that she and Georgeann

were the baby’s caretakers since Crystal had limited mental capabilities. ( (R116, p. 84).

However, the defendant said, all three of them helped to feed and take care of him. In fact, she

said, after the baby had been born on December 25, 2017, she had taught Crystal how to mix the

formula with water. (R116, pp. 85.86). After that, the defendant said, she had only fed the baby


6

8-9 times. Although she had fed him in the morning of April 9, she said, she did not know who

had fed him after that. (R116, pp. 85, 89). Georgeann told Detective James Henley that she had

given the baby a bottle at 1:00 p.m. on April 9. (R115, p. 70).

At some point on April 9, she said, the defendant had become concerned about the baby

because he seemed to be constipated. She called Mt. Sinai Hospital and a nurse gave her

instructions as to what to do. The nurse told her to place a cold cloth on him, to press on his

stomach, and to follow certain other techniques. (R116, p. 88). After that, the defendant said,

she put the baby to bed and told Crystal to check on him in the morning. (R116, p. 16).

On April 10, Georgeann said that she woke up at 7:00 a.m. and she saw Crystal go into

the kitchen. She said she heard the baby crying in the basement. When she asked Crystal why

he was crying, Crystal told her that he had been constipated the night before. (R118, p. 103).

After that, Crystal told her, she had given him something for gas and that then he had had a

bowel movement. Sometime later, the defendant, who had been in the basement, came up with

the baby and told Georgeann that his breathing was very shallow. (R118, p. 103). Georgeann

laid him on a flat area and gave him CPR while the defendant called 911. The EMT’s arrived a

few minutes later, continued giving him CPR, and put him in the ambulance. (R118, p. 104).

C. The death of Laquis and the autopsy results.

Dennis Koback was one of the paramedics who arrived at the house at 10:03 a.m., after

911 had been called. He said that he and the other paramedics continued to try to resuscitate

Laquis as they rushed him to the hospital but they were unable to get a positive response. They

arrived at the hospital at 10:24 am. (R115, p. 53). When Laquis was examined by Dr. Ryan

Scheper, he found that the baby had no pulse and was not breathing. After unsuccessfully

attempting to resuscitate him, Laquis was pronounced dead at 10:46 a.m. (R115, p. 53).


7

Dr. Jacob Smith was the medical examiner who performed the autopsy on the baby. He

noted that Laquis was born a month early , on December 25, 2017, and weighed just over 8

pounds. Laquis lived only three and one-half months and had only gained 802 grams instead of

the 2,100-3,000 grams that he should have gained. (R117, pp. 24-25). When Laquis died, the

doctor said, he was only in the 5th percentile of weight.

He noted that the baby had a very emaciated appearance, with most of his bony structures

– his ribs, spine and head – visible beneath his skin. His eyes and the holes on the top of his

head were sunken. His lower extremities were swollen and his belly was extended. (R117, p.

26). The baby had no stomach contents. He stated that all of these features were signs of

malnutrition. (R117, p. 26).

The doctor concluded that the cause of death was malnutrition. Since the baby could not

feed himself, his death was, therefore, at the hands of others who would have been responsible

for feeding him and the manner of death was homicide. (R117, p. 34). He found that due to the

lack of nutrients and lack of development, the factor that had cause his death was that his heart

could not keep beating and he died from cardiac arrest. (R117, p. 42).

D. The charging of the defendant and Georgeann as being responsible for Laquin’s death.

In investigating who should be held responsible for failing to adequately feed Laquin and,

therefore, causing his death, the police eliminated Crystal as a suspect. They accepted reports

that she had a genetic mental disorder, passed down from her mother, which had made her

incapable of caring for this child. (R115, p. 66). That led them to zero in on the defendant and

Georgeann. When Detective Hensley interviewed Georgeann, she told him that she was

Crystal’s medical proxy and her caregiver. She was also her payee for her SSI checks, her WICS

checks, and her food stamps. (R115, pp. 66-67; R116, p. 18).


8

When Crystal’s first son, Lamont, was born in 2015, Georgeann said that she and the

defendant shared duties caring for that child. She said that she also taught Crystal how to care

for him. When Laquis was born on December 25, 2017, Georgeann said, Crystal retained legal

guardianship over him but she and the defendant shared the duty of taking care of him. She said

that Crystal took care of him about four hours a day, including sometimes giving him his bottle

before he went to bed. (R115, p. 67). Unfortunately, according to Georgeann, the baby had

never gone to see a doctor after he had been born. (R115, p. 85).

Dr. Smith, who had performed the autopsy on the baby, stated that he had read the

medical examiner’s investigation report in this matter. (R117, p. 40). That report had been

received in evidence at the trial. (R117, p. 42). The report included notes made by Dr.

Lehmann, the doctor who had delivered Laquis. (R51, p. 5; App. p. A26). Dr. Lehmann noted

in the report that he had noticed that the baby’s mother did not seem to bond with the baby and

that he thought the mother might have special needs.

In the report, Dr. Lehmann had requested home health visits for the baby to check on his

weight but those visits had never been arranged. (R51, p. 5; App. p. A26). The investigative

report noted that Child Protective Services had decided against implementing services. (R51, p.

1; App. p. A22). The report concluded that, “It was not clear who was the primary caregiver of

the deceased.” (R51, p. 4; App. p. A25).

When Detective Jeffrey Sullivan interviewed the defendant, she told him that Georgeann,

Crystal and she herself were all Laquin’s caregivers and that all three of them were responsible

for feeding him. (R116, pp. 84-85, 89). Crystal testified at the trial as a prosecution witness,

although she had a great deal of difficulty doing so. She was unable to testify by speaking

words, but instead, while facing the jury, but with her back to the defendants, she answered


9

questions in writing, answering yes or no to the questions put to her. Among other things, she

wrote “yes”, that all three of them fed Laquin- her, Georgeann, and the defendant. (R118, pp. 9-

10). She also wrote “yes” that she liked to take care of her children. (R118, p. 13).

E. The admission into evidence of the hospitalization of Crystal’s first child, Lamont, for being underweight, two years earlier, as other acts evidence.

Although Laquin had died on April 10, 2018, the defendant and Georgeann were not

charged in this matter until over a year later, on May 25, 2018. After the Criminal Complaint

and the Information had been filed in the defendant’s case, on August 21, 2018, the state filed a

motion to admit other acts evidence at the defendant’s trial involving the hospitalization in 2015

of Lamont D., who was then eight months old, for being underweight. (R12, pp. 1-7; App. pp.

A6- A12).

The state argued that at that time, Georgeann and the defendant admitted to being

Lamont’s primary caregivers and that although a visiting nurse had been assigned to help with

Lamont’s care, they had rejected further in-home services. (R12, p. 3; App. p. A8). The state

indicated that it wanted to introduce evidence regarding that prior neglect investigation,

including the statements of the two co-actors, to refute any claim by them that they had not been

Laquis’ caretakers in this case. (R12, pp. 3-4; App. pp. A8- A9).

On October 12, 2018, a Response was filed by the defense, objecting to this other acts

evidence being admitted. (R14, pp. 1-3; App. pp. A13- A15). It was argued that in the previous

matter, there had been insufficient evidence to establish that the defendant had accepted

responsibility of the care of Lamont. Instead, it was argued, the reports merely established that

the Crystal and Lamont had lived with the defendant and Georgeann, and that they had merely

helped Crystal with Lamont’s care. (R14, pp. 2-3; App. pp. A14- A15).


10

On October 25, 2018, a hearing was held in the Circuit Court of Milwaukee County, the

Hon. David Borowski, presiding, in regard to the state’s motion to admit other acts evidence.

(R107, pp. 1-12). The state was represented by Mr. Torbenson and the defendant was

represented by Mr. Malone. The state argued that the defendant had told a social worker, Mariah

Johnson, that Lamont had six feedings a day, consisting of formula, baby food, and baby cereal

and that she helped to care for him daily. (R107, pp 5-6).

The Court held that the mere fact that the defendant knew Lamont’s feeding schedule was

sufficient to establish that she was Lamont’s primary caregiver. (R107, p. 6). The Court held

that, “Under the Sullivan analysis, the other acts evidence is relevant. It’s relevant to the

defendant’s knowledge. It’s relevant to lack of mistake. It certainly has probative value. It’s

fairly relatively near in time and place. The circumstances are disturbingly similar.” (R107, pp.

7- 8).

The Court even went so far as to characterize the issue as to whether the defendant had

been a primary caregiver of Lamont- the key question in regard to the admissibility of the other

acts evidence- as being a mere “squabble” as to who had actually been the caregiver, a

“squabble” which could be resolved at the trial. (R107, p. 8). It, therefore, held that the other act

evidence involving Lamont could be received as evidence at the defendants’ trial. (R107, p. 7).

In her Decision denying the Postconviction Motion, the Hon. Janet C. Protasiewicz held

that, “The court finds that the record reflects that Judge Borowski exercised his discretion in

considering the parties’ arguments and the appropriate legal standard before ruling in favor of the

admission of the other acts evidence.” (R97, p. 5; App. p. A41).


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F. The testimony and evidence introduced by the state at the defendants’ trial regarding the hospitalization of Lamont in 2015

As a result of the Court’s pretrial ruling, the trial regarding the death of Laquis actually

became the trial of both his death and the circumstances surrounding the hospitalization and care

of Lamont. In fact, many of the state’s witnesses involved Lamont’s care, not Laquis’ care.

To begin with, Mariah Johnson, a social worker for Child Protective Services in

Milwaukee, testified that when Lamont had been hospitalized, she had interviewed both

Georgeann and the defendant. (R116, p. 41). She said that Georgeann had reported that she was

the “primary caregiver” of Lamont and that she had supervised Crystal when she cared for him.

(R116, p. 45). Specifically, she testified that Georgeann had “…stated that she was the primary

caregiver of Lamont and that she does not allow Crystal, Lamont’s mother, to perform care

alone, as she’d not able to do so by herself and requires supervision.” (R116, p. 45).

The only thing that the defendant had told her was that, “She described the feeding

schedule for Lamont and stated that they fed Lamont approximately six feedings a day,

consisting of formula, baby food, and baby cereal.” (R116, p. 45). Ms. Johnson also testified

that when she checked the feeding log, she noted that it had been filled out in detail- showing

that he had been eating six to seven times per day.” When she was asked who had been filling

out the feeding log, she answered, “Miss Dawkins and Miss Pearson.” (R116, p. 46). However,

she did not give any indication as to how she had known who had been filling out the feeding log

because she never testified that she had asked anyone who had been filling it out.

There was no statement by Ms. Johnson that the defendant had, in any manner, accepted

responsibility for the care of Lamont. Ms. Johnson’s only statement was that, “It’s my

understanding that between the two of them, they both provided primary care for Lamont.”

(R116, p. 41). She never indicated what the source of that understanding had been.


12

In fact, she testified that it had been Georgeann, not the defendant, who had rejected

intensive in-house services for Lamont. (R116, p. 47). She testified that on November 3, 2015,

she has talked to Georgeann about intensive in-home services for Lamont. Georgeann stated that

she would not be interested because they were “doing what they are asked and do not feel that

more people need to be coming into their home.” (R116, p. 47).

At the sentencing, the Court was very insistent on knowing exactly who had declined the

intensive in-home services for Lamont. The Court asked the defendant, “why did you tell them

we don’t need your help?”, referring to Lamont. The defendant answered, “I didn’t. They didn’t

ask me did I need any help.” (122, p. 29). The Court then asked the state to find out who had

declined the in-home services, saying, “What I’m interested in is when they refused services for

Lamont whether or not Ms. Dawkins was specifically involved in that.” (R122, p. 30). Mr.

Torbenson found a note, dated November 3, 2015, which indicated that it had been Georgeann,

not the defendant who had declined the services. He told the Court, “But in terms of specifically

refusing intensive in-home services, it was Georgeann Pearson according to the information in

the case notes.” (R122, p. 31).

Another issue that Ms. Johnson testified to involved the guardianship of both Crystal and

Lamont. No guardian had been appointed for either one of them at that time. (R118, pp. 17, 27).

When she was asked what the reason had been for not seeking to have a legal guardian appointed

for either Crystal or Lamont, she answered, “It was my understanding that Miss Pearson and

Miss Dawkins were assisting her in caring for her children. (R116, p. 52). She never gave any

further explanation as to her reasons for that understanding. And she never testified that the

defendant had told her that she had assumed responsibility for Lamont’s care.


13

There was another witness who testified at the trial about Lamont’s care. Lamont was

sent home after five days and a visiting nurse, Evelyn Hansen, was assigned to go to the home to

supervise his care. Hansen testified at the trial that she had become involved in Lamont’s care

on October 15, 2015. She said he had been admitted to their service due to “failure to thrive”.

(R116, p. 67). She said she had taught all three women to feed him formula, not juice, and to

feed him the appropriate amount of food. She also said that she had also taught them about

keeping a feeding log. (R116, pp. 68-69).

She said that she had visited their house 7-9 times over a period of two months. She

testified that sometimes, Lamont would have small weight gains, but other times, he had actually

lost weight. (R116, pp. 70-71). She never testified that the defendant had made any statements

to her about taking responsibility for the care and feeding of Lamont.

Even though Lamont was not making that much progress, astonishingly , Ms. Hansen

stopped going to the house because, she said, the insurance that had been covering her visits had

lapsed. She did not state that she had made any effort to have it reinstated to protect this baby.

(R116, p. 71).

Even though the social worker, Ms. Johnson, had become aware that Lamont’s weight

had been fluctuating and that he had missed several medical appointments, she closed his case on

November 13, 2015. (R116, pp. 46, 50). And when she learned that the visiting nurse was no

longer going to be going to the house, she did not reopen the case. She said that she did not

reopen it because that was not within her “job description”. (R116, p. 61). Lamont was not

removed from the home until April, 2017, when he was placed in a foster home. (R118, pp. 18,

27).


14

All of this testimony was admitted during the jury trial of this matter. During his opening

statement, Mr. Torbenson repeatedly discussed the circumstances involving Lamont’s

hospitalization and care in 2015. (R115, pp. 35-36). He also repeatedly, and in great detail,

discussed those circumstances in his closing statements. (R119, pp. 21-23). In doing so, he

argued that, as a result of the case with Lamont, both Georgeann and the defendant knew that

Crystal had been unable to care for Laquis once he had been born and they had been taught how

to feed and care for a baby. Further, he argued, as with Lamont, both Georgeann and the

defendant had accepted responsibility for caring for Laquis. (R119, pp. 21, 24).

Mr. Malone argued that the evidence was clear that all three women had been taking care

of Laquis, including Crystal. He also argued that both Georgeann and the defendant had

numerous children of their own and all of them were healthy. It was not at all clear from the

evidence in the case, he argued, that the defendant had accepted primary responsibility for

Laquis. He also argued that she should not be held responsible for his death. (R119, pp. 48-49).


15

POINT I

THE OTHER ACTS EVIDENCE REGARDING THE HOSPITALIZATION AND CARE OF LAMONT HAD BEEN IMPROPERLY RECEIVED BECAUSE THE STATE HAD NOT ESTABLISHED, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE DEFENDANT HAD BEEN A PRIMARY CAREGIVER OF LAMONT, AND IT WAS UNDULY PREJUDICIAL TO THE DEFENDANT, DENYING HER A FAIR TRIAL.

A. The legal principles involved in the admission of the other acts evidence.

In 1967, in Whitty v. State, 34 Wis. 2d 278, 149 N.W.2d 557, the Supreme Court stated

the basic rules regarding the admission of other acts in a criminal trial. First, the Court

recognized the “character rule” which states that prior criminal acts are not admissible in

evidence

for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged. Id. at 291-292. The Court recognized that, among other things, prior crimes evidence would lead to an

“overstrong tendency to believe the defendant guilty of the charge merely because he is the

person likely to do such acts” and “the confusion of issues which might result from bringing in

evidence of other crimes.” Id. at 292. The Court recognized that the admission of such evidence

would deny the defendant a fair trial, which would mean the defendant would be denied due

process of law. Id. at 297.

The Court also recognized that evidence of prior crimes may be admissible “when such

evidence is particularly probative in establishing the elements of the crime charged, including

“intent, identity, system of criminal activity, to impeach credibility, and to show character…”.

Id. at 292. The Court held that the prior crime need not to be in the form of a conviction and that

“evidence of the incident, crime or occurrence is sufficient.” Id. at 293. Its probative value, the


16

Court held, depends upon “its nearness in time, place and circumstances to the alleged crime…”,

Id. at 294.

In the end, the Court held that it was up to the court’s discretion as to whether the

evidence should be excluded because its probative value was outweighed by the “danger of

undue prejudice”, confusion of the issues, or “misleading the jury”. Id. at 294.

These principles have been codified in §904.04 Wis. Stats., which provides that:

(1) 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, except… (a) character of accused. Evidence of a pertinent trait of the accused’s character offered by an accused, or by the prosecution to rebut the same… (2)(a) Except as provided in paragraph(b)(2), 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 evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Further, in 1998, to clarify the role of the trial court in determining whether other acts

evidence should be admitted, the Supreme Court, in State v. Sullivan, 216 Wis.2d 768, 576 N.W.

2d 30, established a three part test. First, “is the other acts evidence offered for an acceptable

purpose under §904.04(2), such as establishing motive, opportunity, intent, preparation, plan,

knowledge, identity, or mistake or accident?” Id. at 772.

Second, “Is the other acts evidence relevant?” That is, does it relate to a fact that is “of

consequence to the determination of the action.” And does it have a tendency to make that fact

“more probable or less probable than it would be without the evidence.” Id. at 772. That

language was taken, in part, from §904.01. Under this step, the Court stated that “the greater the

similarity, complexity and distinctiveness of the events, the stronger the case for admission of the

other acts evidence.” Id. at 787,


17

One of the most important factors in regard to the issue of relevancy under Sullivan is

whether the state has proven that the defendant had actually committed the other act that was

being introduced. It has been held that under §904.04(2), “other acts evidence is relevant only

when a jury could find by a preponderance of the evidence that the defendant had committed the

other act.” State v. Bastamante, 201 Wis. 2d 562, 549 N.w.2d 746 (1996); State v. Gribble, 248

Wis.2d 409, 443, 636 N.W. 2d 488 (2001).

In order to determine the relevancy of other acts evidence when such evidence is

conditioned on the showing of another fact, such as whether the defendant had been a primary

caregiver of Lamont in this case, it has been held that the trial court is to apply the requirements

set forth in §901.04(2). State v. Gray, 225 Wis. 2d 39, 59, 590 N.W. 2d 918 (1999). That statute

provides that,

(2) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. In determining whether the evidence fulfills the requirement of that statute, the court is to

“examine all the evidence presented to the jury and determine if a reasonable jury could find the

conditional fact by a preponderance of the evidence. Id. at 60. The Court also held that if the

state “fails to provide sufficient evidence to allow the circuit court to conclude that a jury would

find the conditional fact by a preponderance of the evidence, the circuit court must instruct the

jury to disregard the other acts evidence.” Id. at 60.

The third step test under Sullivan is, “Is the probative value of the other acts evidence

substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading

the jury…?” Id. at 772-773. That language was taken, in part, from §904.03. It has been held

that, “Unfair prejudice results when the proffered evidence has a tendency to influence the


18

outcome by improper means or if it appeals to the jury’s sympathies, arouses its sense of horror,

provokes its instinct to punish or otherwise causes a jury to base its decision on something other

than the established propositions in the case.” Id. at 789-790. See also, Gray, supra, at 64.

The Court also held that if the trial court “erroneously exercised its discretion in weighing

the probative value of the other acts evidence against the danger of unfair prejudice…”, it may

be found that the other acts evidence should not have been admitted. Id. at 789.

B. The insufficiency of the evidence to establish that the defendant had been a primary caregiver of Lamont and therefore, the insufficiency that she was even guilty of the

other act that had been disclosed to the jury.

In this case, there had been insufficient evidence for the trial court to conclude that a

reasonable jury could have found, by a preponderance of the evidence, that the defendant had

been a primary caregiver of Lamont in 2015. For that reason, the Court should not have allowed

all of that other acts evidence regarding the hospitalization and care of Lamont to be introduced

at the trial.

The evidence that the state introduced involving Lamont, including the testimony of

Mariah Johnson, the social worker assigned to his case, and Evelyn Hansen, the visiting nurse, is

set forth in detail above. Ms. Johnson’s testimony that the defendant had been aware that

Lamont had been fed six feedings per day of formula, baby food, and baby cereal did not come

close to establishing that the defendant had taken responsibility for the care and feeding of

Lamont. Her “understanding” that the defendant, along with Georgeann, had provided his

primary care, without any evidence to support that understanding, was certainly not sufficient for

a jury to find, by a preponderance of the evidence that the defendant had been one of Lamont’s

primary caregivers.


19

Nor did the testimony of Ms. Hansen, the nurse, establish, by a preponderance of the

evidence, that the defendant had been one of Lamont’s primary caregivers. She merely testified

that when she went to Lamont’s home, she had taught Crystal, Georgeann, and the defendant

how to feed him and how to keep a feeding log. At no time had the defendant made any

statements to her about actually taking responsibility for his feeding or care.

Since the evidence at the trial had not proven, by a preponderance of the evidence, that

the defendant had been a primary caregiver of Lamont, none of the other acts evidence involving

Lamont should have been received at the trial involving the death of Laquis. Since the state had

not sufficiently proven the other acts evidence against the defendant, the second factor under

Sullivan had not been satisfied.

The second step in Sullivan requires that the trial court determine whether the other acts

evidence was relevant to the trial at hand and in order to prove that, the state must sufficiently

establish that the defendant had actually committed the other act that was being offered at trial.

In this case, since the state failed to sufficiently prove that the defendant had actually been a

primary caregiver of Lamont, the other act evidence was not relevant and did not belong in this

trial relating to Laquis. Since all of that evidence involving Lamont had been received at the

trial, the defendant had been denied a fair trial and she is entitled to have her conviction for

Reckless Homicide in the second degree reversed and a new trial ordered.

Further, the other acts evidence regarding Lamont had been extraordinarily prejudicial to

the defendant’s right to a fair trial. The jury was required in this case to determine whether the

evidence had proven that she had caused his death by conduct that had created a risk of death to

him and whether, not only had the risk been unreasonable and substantial, but whether she had

been aware that her conduct had created that risk. (R120, pp. 12-13).


20

The introduction into evidence of the other acts evidence relating to Lamont could not

help but have led the jury to believe that the defendant was guilty of that charge simply because

she had allegedly been a person who had done such an act before and allegedly was likely to

commit such an act in this case. There was no doubt how important the evidence relating to

Lamont had been in the jury’s determination of the defendant’s guilt because the questions asked

by the jurors during their deliberations related to Lamont, not to Laquis.

The jurors asked, “What insurance was baby Lamont covered by and why was it lapsing

at the end of 2015?” (R61, p. 1; App. p. A27). Another question showed the juror’s confusion

between the two cases. They asked, “What is the name of the baby in Exhibit 18? What is the

name of the baby in Exhibit 33?” The Court refused to answer their questions, merely advising

them to “Rely on your collective memory of the evidence.” (R64, p. 1; App. p. A30).

There had been so much evidence introduced regarding Lamont and so much emphasis

on him by the prosecutor in his opening and closing statements that the issue as to whether the

defendant should be held responsible as a primary caretaker of Laquis had become solidified in

the jury’s mind, not by the actual evidence relating to the circumstances surrounding Laquis’

death, but by the evidence surrounding the hospitalization and care of Lamont.

Whatever probative value the evidence relating to Lamont may have had, it was far

outweighed by the undue prejudice it had caused to the defendant’s right to a fair trial. For that

reason, the third step under Sullivan had not been satisfied because the state had failed to show

that the probative value of the evidence relating to Lamont had not been outweighed by the

undue prejudice that it had caused the defendant. For these reasons, too, the defendant is entitled

to have her conviction reversed and a new trial ordered.


21

POINT II

THE COURT ERRONEOUSLY EXERCISED ITS DISCRETION IN ALLOWING CRYSTAL TO TESTIFY IN THE STATE’S CASE IN CHIEF BECAUSE THE STATE HAD FAILED TO GIVE NOTICE TO THE DEFENSE IN ITS TWO WITNESS LISTS THAT IT INTENDED TO CALL HER AS A WITNESS IN ITS CASE IN CHIEF AND FAILED TO SHOW GOOD CAUSE FOR THAT FAILURE. A. The defense’s objection to calling Crystal as a witness in the state’s case in chief and

Court’s ruling on that objection.

In a Motion, dated November 14, 2018, defense counsel moved to prohibit the state from

introducing any inculpatory statement that had been made bu the defendant to a witness unless

that had been previously disclosed to defense counsel. (R19, p. 2; App. p. A17). On November

15, 2018, the state filed the State’s Witness List, in which it did not list Crystal as a witness.

(R17, p. 1; App. p. A19). Then on March 26, 2019, the state filed the State’s Amended Witness

List, once again failing to name Crystal as a witness. (R25, pp. 1-2; App. pp. A20- A21).

During the trial, after numerous prosecution witnesses had been called, a conference was

held in the morning of May 1, 2019. Mr. Torbenson advised the Court that the state had planned

to call Crystal as a rebuttal witness but that he had decided to call her in his case in chief instead.

(R117, p. 4). Mr. Malone objected. He argued that the defense had the right to know before the

trial that the state intended to call Crystal as a witness in its case in chief because then he would

have interviewed her before the trial and would have obtained her records. He also argued that

calling her as a witness at that point in the trial disadvantaged the defense. (R117, p. 6).

The Court noted that the defense had already asked several witnesses questions about

Crystal and that it had, therefore, opened the door to having her called as a witness. The Court

said that it found no problem in the state’s calling her as a witness at that point in the trial,

especially since she was going to be called as a rebuttal witness anyway. (R117, p. 7). The


22

Court noted that she would be a central witness in the case and that it would not be a surprise to

the defense for her to be called as a witness by the state. (R117, p. 8). The Court, therefore, held

that it would allow Crystal to testify in the state’s case in chief. (R117, pp. 8, 13).

Later that morning, Crystal began her testimony but due to her reluctance to testify, the

Court called a recess for lunch and she was recalled as a witness that afternoon. (R117, p. 55).

As noted above, she refused to orally answer any question put to her and, instead, wrote her

answers, yes or no, on paper. (R118, pp. 9-10).

After her testimony and the testimony of several other witnesses, another conference was

held. At that conference, Mr. Malone moved for a mistrial on the ground that Crystal had not

been listed on the state’s witness lists and that good cause for allowing her to testify anyway in

the state’s case in chief had not been shown. (R118, pp. 42-43). He argued that under both

§971.23(1)(d) and State v. Prieto, 2016 WI App 15, 366 Wis.2d 794, 876 N.W.2d 154, the state

was required to show good cause for failing to include Crystal in its two witness lists and that the

defense was not required to show prejudice before moving to exclude her as a witness in the

case. (R118, p. 45). He argued that had he known she was going to be called as a witness, he

would have contacted her guardian, if she had one, and would have obtained information about

her mental health issues. (R118, p. 45). He argued that the state had failed to show good cause

for not having included her on its witness lists. (R188, p. 46).

B. The legal issues involved in giving notice of witnesses that a party intends to call in its case in chief.

Section 971.23(1) provides that, Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following ‘ materials and information, if it is within the possession, custody or control of the state:


23

(d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only. Section 971.23(7m) provides that, The court shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance. In Prieto, in which the state had failed to provide a witness list of its lay witnesses a full seventeen days before trial, the Court granted the defense’s motion to exclude those

witnesses from the trial. The Court held that, “The burden was on the district attorney’s office to

show that it had good cause for this violation, not on Prieto to show that she was prejudiced.”

The Court further held that, “The district attorney did not show good cause, and the court

properly exercised its discretion when it excluded from trial all witnesses that the district

attorney had not named in violation of §971.23(1)(d) and the court’s orders. Id. at 800.

In this case, the state had clearly erred in failing to include Crystal as a witness in its two

witness lists. The only question was whether good cause had been shown to allow her to testify

in the state’s case in chief when the state had only presented her as a witness in the middle of its

case in chief, which was already in progress. This was not a case, as in Prieto, where the state

had failed to name her as a witness over two weeks before the trial, or even one day before the

trial. Here, the state announced to the defense that it was going to call her in its case in chief

when the defense would have had no opportunity to interview her as a possible prosecution

witness before she had actually testified.

After defense counsel had moved for a mistrial in this case due to the state’s failure to

name Crystal on its two witness lists, the Court, noting §971.23(7m), stated that it realized that it


24

was required to exclude Crystal as a witness unless good cause had been shown for not having

included her on the witness list. (R118, p. 48). The Court then noted it regretted having allowed

her to testify in the state’s case in chief, stating that it would have been “cleaner” if she had been

called as a rebuttal witness.

The Court then stated that it was probably in Crystal’s best interest to testify out of order

so that she would not have to wait to testify. (R118, p. 51). The Court also noted again that the

defense had opened the door to her testimony. For these reasons, and because she would have

been called as a rebuttal witness anyway, it held that good cause had been shown to allow

Crystal to testify in the state’s case in chief even though she had not been listed as a witness on

the state’s two witness lists. (R118, pp. 53, 54). The Court, therefore, denied defense counsel’s

motion for a mistrial. (R118, p. 52). Specifically, it held that,

But I don’t believe that the prosecutor flagrantly disregarded the court’s orders. And I think, quite frankly, that co-defendant Pearson’s attorney did open the door to this during your opening statement. So we have an interesting issue here. But I am going to find that there was a good cause and deny your motion for a mistrial. (R118, p. 52). In denying the Postconviction Motion on this ground, the Court held “…the court

thoroughly considered the parties’ arguments about the timing of Crystal’s testimony during the

trial. The court stands by its ruling distinguishing the Prieto case and finding good cause for the

prosecutor’s failure to include Crystal in its witness list.” (R97, pp. 8-9).

None of the excuses put forward by the state, that the defense had opened the door to her

testimony by asking previous prosecution witnesses about her and that she would have been

called anyway as a rebuttal witness constituted good cause for completely ignoring the statute.

The purpose of the statute was to require the state to provide proper discovery to the defense so

that the defendant could properly prepare his or her case for trial. The beginning words of


25

§971.23(1) are, “What a District Attorney must disclose to a defendant.” Calling Crystal as a

prosecution witness in the state’s case in chief, without giving the defense forewarning of that

fact before trial, denied the defendant a fair trial. For that reason, she is entitled to have her

conviction for Reckless Homicide in the second degree reversed and a new trial ordered.


26

CONCLUSION

The defendant respectfully requests that this Court reverse the denial of the

Postconviction Motion by the Circuit Court of Milwaukee County and reverse the defendant’s

conviction for Reckless Homicide in the second degree and order a new trial.

Dated: October 29, 2020 Milwaukee, Wisconsin ___________________________________ Esther Cohen Lee Attorney for Defendant- Appellant State Bar No. 1002354 11414 W. Park Place, Suite 202 Milwaukee, Wisconsin 53224 Cell: (608) 556-0200


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CERTIFICATION AS TO FORM AND LENGTH

I hereby certify that this brief conforms to the rules contained in §809.19(8)(b) and (c) Wis. Stats. for a brief produced with a proportional serif font. The brief contains 8,188 words. Dated: October 29, 2020 ___________________________________ Esther Cohen Lee Attorney for Defendant-Appellant


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CERTIFICATION AS TO COMPLIANCE WITH RULE 809.19(12)

I hereby certify that: I have submitted an electronic copy of this brief, excluding the appendix, if any, which complies with the requirements of §809.19(12) Wis. Stats. I further certify that: This electronic brief is identical in content and format to the printed form of the brief filed on or after this date. A copy of this certificate has been served with paper copies of this brief filed with the court and served on all opposing parties. Dated: October 29, 2020 ___________________________________ Esther Cohen Lee Attorney for Defendant- Appellant State Bar No. 1002354 11414 W. Park Place, Suite 202 Milwaukee, Wisconsin 53224 Cell: (608) 556-0200


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