State v. Alvarado

1

State of Wisconsin, Plaintiff-Respondent, v. Ramon Alvarado, Jr., Defendant-Appellant.

No. 2021AP2057-CR

Court of Appeals of Wisconsin, District I

April 4, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2021-22).

APPEAL from a judgment and an order of the circuit court for Milwaukee County: Cir. Ct. No. 2014CF352 DENNIS P. MORONEY and DAVID A. FEISS, Judges.

Before Brash, C.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Ramon Alvarado, Jr., pro se, appeals from a judgment of conviction, following a jury trial, of one count of first-degree recklessly endangering safety with the use of a dangerous weapon and one count of being a felon in possession of a firearm. Alvarado also appeals from the order denying his postconviction motion for relief. Upon review, we affirm.

BACKGROUND

¶2 On March 7, 2014, the State filed an Information charging Alvarado with one count of first-degree recklessly endangering safety with the use of a dangerous weapon and one count of being a felon in possession of a firearm. The charging documents alleged that on January 27, 2014, Alvarado was driving a beige vehicle when he pulled up to P.S., shot her in the knee, and then drove away. Milwaukee Police were dispatched to the scene. P.S. initially told police that "Sanford" shot her. Later, at the hospital, she told police that "Wolfie" shot her. P.S. positively identified Alvarado from a photo array as the shooter and told police that Alvarado was known as "Wolfie." Police arrested Alvarado at his home where they located nine-millimeter ammunition that matched the shell casings found at the scene of P.S.'s shooting.

Pretrial Proceedings

¶3 As relevant to this appeal, prior to trial, Alvarado, by counsel, filed a motion to suppress a statement he made to police at his residence. The motion alleged that when police took Alvarado into custody at his home, Officer Patrick Elm asked Alvarado whether he had a car and to describe the vehicle. Alvarado requested a hearing to determine if Alvarado was informed of his Miranda^[1] rights and whether his statement was voluntary. A few months later Alvarado separately filed a pro se motion for a speedy trial.

¶4 At a hearing on the suppression motion, the State indicated that it did not oppose Alvarado's motion and the trial court granted the motion. At the same hearing, defense counsel informed the trial court that Alvarado wanted his cell phone returned from the State so that he could contact potential alibi witnesses. Noting that the trial was approximately three weeks away, the trial court stated "It's too late for alibi witnesses." The trial court informed counsel that if Alvarado "wants to give up his right to a speedy trial we'll talk about it," but the trial court informed trial counsel that doing so would change the timeline of the trial. Defense counsel spoke with Alvarado and then informed the trial court that Alvarado wished to keep the trial date. Defense counsel then asked the trial court to order the release of the phone's contents as opposed to the physical phone. The State expressed concern over counsel's request, explaining that "there might be information regarding witnesses or victims." The State feared that "there's information on there that he will utilize." The trial court agreed with the State and denied Alvarado's request.

The Trial

¶5 The matter then proceeded to trial where multiple witnesses testified. P.S. told the jury that she had purchased drugs from Alvarado and gave him a watch as collateral until she could complete her payment. P.S. stated that a few weeks later she was walking to a bus stop when Alvarado drove up to her in a beige car and demanded his money. P.S. asked for the watch, at which point Alvarado shot her in the knee and drove away. P.S. identified Alvarado as the shooter in court.

¶6 J.L. testified that on January 27, 2014, he was in a parking lot warming up his car when he heard a "loud bang." He then saw "a lady bleeding from her leg" and "a car leaving the scene." J.L. described the car as "a tan-ish Ford Taurus four door." He called 911.

¶7 Officer Laura Captain testified that when she arrived at the scene she asked P.S. who shot her. Initially, P.S. refused to answer, but then told Captain that "Sanford" shot her. Captain accompanied P.S. in the ambulance, where P.S then told Captain that "Wolfie" shot her. P.S. stated that "Wolfie" was driving a "beige older model four-door car."

¶8 Detective Terrence Wright testified that when he interviewed P.S. At the hospital, she told him that "Wolfie" shot her. She also described Wolfie's car as "a tan- or beige-colored vehicle." Wright showed P.S. photo arrays, from which P.S. identified Alvarado as the shooter.

¶9 Officer Patrick Elm testified that he and another officer went to the home of Alvarado's brother, Roberto, the day after the shooting to look for Alvarado. Alvarado's mother and Roberto consented to the officers' search of the home. Elm testified that they located Alvarado in the basement, took him into custody, and arrested him.

¶10 Elm also testified that he asked Roberto whether there was a beige car on his property. Over defense counsel's objection, the trial court allowed Elm to answer that Roberto told him he was not sure if the car was on the property. Defense counsel again objected, and the court overruled the objection, determining that Elm "may testify to what his brother knows." Elm then testified that Roberto said that he had seen Alvarado drive "a brown or beige type vehicle" as recently as January 28, 2014. Defense counsel again objected on hearsay grounds. The trial court overruled the objection. Elm also testified that when police searched the basement, they found an empty gun case and some nine-millimeter bullets.

¶11 Detective Timothy Koceja testified that during the investigation, police found a nine-millimeter cartridge casing at the crime scene.

¶12 Alvarado testified in his defense, denying ever shooting P.S. And denying that that he drove a beige or brown sedan. When questioned on redirect, Alvarado denied that he ever owned or drove a brown or beige Ford Taurus. He also denied telling Elm when he was arrested at Roberto's house that he did drive a brown or beige Taurus, but that it was not registered in his name.

¶13 After Alvarado testified, the State informed the trial court that it would recall Elm to impeach Alvarado's testimony about the beige car. The State acknowledged that it stipulated to a Miranda violation at the suppression hearing, but told the trial court the Miranda violation was irrelevant in light of Alvarado's own testimony that he never drove a beige car. Defense counsel objected, but the trial court allowed the State to recall Elm on the grounds that Alvarado's statement to Elm was a prior inconsistent statement. The State recalled Elm, who told the jury that after arresting Alvarado and placing him in the squad car, Elm asked Alvarado whether he had a beige car. Elm said that Alvarado answered in the affirmative, but stated that the car was not registered to him. Elm included Alvarado's statements in his police report, which was admitted into evidence.

¶14 The jury found Alvarado guilty of both counts. The trial court sentenced Alvarado to a total of thirteen years of initial confinement and eight years of extended supervision.

Postconviction Proceedings

¶15 Following sentencing Alvarado, pro se, moved for postconviction relief, raising a multitude of claims. The postconviction court denied the motion without a hearing on all of Alvarado's claims except one, which is not relevant to this appeal.^[2] This appeal follows.

DISCUSSION

¶16 Alvarado raises eight issues on appeal, however, only a handful are actually briefed. Accordingly, we only address the issues that we can extrapolate from Alvarado's brief. See State v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) (stating that we will not address issues that are inadequately briefed). Alvarado contends that: (1) the State committed prosecutorial misconduct when it withheld his contacts from his cell phone because he needed them to establish his alibi and alibi witnesses; (2) the State waived any argument during the suppression hearing that Alvarado's statement to police that he drove a beige car should be suppressed; (3) the trial court committed plain error when it admitted Alvarado's statement to police that he drove a beige car as a prior inconsistent statement and (4) the trial court committed plain error when it admitted Roberto's statement to police that he knew Alvarado drove a beige car. We address each issue.

Prosecutorial Misconduct

¶17 Alvarado contends that the State committed prosecutorial misconduct when it withheld Alvarado's contacts from his cell phone, because he needed them to "establish his alibi and alibi witnesses." The postconviction court rejected this claim. We agree that the postconviction court correctly rejected this claim.

¶18 A conviction is not to be reversed unless the prosecutorial misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Alvarado must prove that the prosecutor's conduct undermined the fairness of his trial and contributed to a miscarriage of justice. See United States v. Young 470 U.S. 1, 16 n.14 (1985). The reviewing court must determine whether, in light of the entire record, the misconduct denied Alvarado a fair trial. See id. at 11-12.

¶19 Here, the State objected to the release of Alvarado's phone...