State v. Balderas

1

State of Wisconsin, Plaintiff-Respondent, v. Juan Andres Balderas, Jr., Defendant-Appellant.

No. 2021AP1036-CR

Court of Appeals of Wisconsin, District I

May 9, 2023

This opinion will not be published.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

APPEAL from a judgment and an order of the circuit court for Milwaukee County No. 2018CF5434, MICHELLE ACKERMAN HAVAS Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and Dugan, J.

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 Juan Andres Balderas, Jr., appeals a judgment of conviction entered following a jury trial for one count of first-degree recklessly endangering safety, and one count of second-degree recklessly endangering safety, both with the use of a dangerous weapon. He also appeals the denial of his postconviction motion.^[1] On appeal, Balderas contends that: (1) the discovery of a new witness entitles him to a new trial; (2) the circuit court erred when it failed to provide a castle doctrine jury instruction; and (3) his trial was unconstitutional. Upon review, we reject Balderas's arguments and affirm.

BACKGROUND

¶2 Balderas was charged with one count of first-degree recklessly endangering safety and one count of second-degree recklessly endangering safety, both with the use of a dangerous weapon. According to the criminal complaint Balderas shot his brother, E.B., in the neck. As E.B. ran away, additional shots were fired.

¶3 Relevant to this appeal, at trial, E.B. testified that Balderas was his older brother, and that prior to the shooting there was a family argument on social media. On November 12, 2018, E.B. decided to go to Balderas's house to talk to him.

¶4 E.B. parked across the street from Balderas's house, and saw Balderas outside in his yard. E.B. and Balderas made eye contact, and then Balderas began walking to his van. E.B then got out of his car. As E.B. approached the van, Balderas was sitting in the driver's seat. E.B. made eye contact with Balderas and "kind of said hey." Balderas produced a gun and shot E.B. in the neck. E.B. said "what the hell, you shoot your own brother." Balderas responded, "hell yeah," raised his gun and started firing again. E.B. ran away and told some road workers to call the police. According to E.B., he did not crouch or tiptoe to the van, he did not have anything covering his face, his sweatshirt hood was not up, and he was not armed with a weapon.

¶5 In support of E.B.'s testimony, the State introduced a photo showing the bullet wound to E.B.'s neck. The State also introduced a photo of E.B.'s sweatshirt showing a bullet hole at the top of the hood. Based on the location of the bullet hole at the top of the hood, the State argued that if E.B.'s hood had in fact been up, the bullet wound would have been on E.B.'s head, not his neck. Thus, the State contended that Balderas was not telling the truth about E.B. having his hood up.

¶6 Balderas testified that on the day of the shooting, he went outside to his van to go to work. As he left the house, he did not see anyone. Once Balderas was in his van, he saw someone in his side mirror "with their hoody on creeping up" on the side of his van. Balderas testified that when he saw a person approaching his van, he felt scared for his life. Balderas testified that the person opened the door and swung at him. In response, Balderas grabbed his gun and fired a warning shot. After firing a warning shot, Balderas recognized E.B. Balderas testified that E.B. said that "I can't believe I'm shot" and then started running.

¶7 According to Balderas, E.B. stopped by some garbage cans and bent down, and it looked like he was raising something in his hand. Balderas then discharged his weapon two more times into his neighbor's lawn saying, "I'm not fucking playing." Later, Balderas testified that "now that I think about it, maybe he was putting a gun down" so the police would not find it. Balderas continued that "[n]ow, that I'm thinking about it, why would he go over there and bend down? He's either putting the gun down or picking the gun up." Balderas admitted, however, that he never mentioned his suspicions to the police. When asked to explain how E.B.'s hood could have been up, given that the bullet hole was in the top of the hood and E.B. was not shot in the head, Balderas said that "he was crouched down and the bullet was bouncing around in there."

¶8 The circuit court provided a self-defense instruction to the jury on both counts. See Wis JI-Criminal 805. Subsequently, during deliberations, the jury inquired as to whether bodily harm has to occur before force can be used in self-defense or whether a person can use force if they merely fear that they will be harmed. Balderas's trial attorney argued that the proper response would be to instruct the jury to read the jury instructions. The circuit court agreed, and instructed the jurors to refer to the jury instructions.

¶9 The jury found Balderas guilty as charged. Postconviction, Balderas moved for a new trial based on newly-discovered evidence, or in the interest of justice. The motion argued that the police failed to take a statement from Amanda Bailey, who asserted in a post-trial affidavit that she witnessed the incident between Balderas and E.B. Balderas also claimed that his due process rights were implicated because police failed to take Bailey's testimony. Balderas did not raise any claims regarding the jury instructions.

¶10 On April 7, 2021, the circuit court held an evidentiary hearing. At the hearing, Bailey testified that she is friends with Balderas's domestic partner, Delvina Harris. Bailey testified that on November 12, 2018, she was in the alley in view of Balderas's residence because she was going to use the garage to work on her car. Bailey saw a man with darker clothing and a hood on walking towards Balderas's van. As the person walked, "their pace picked up." The person then went between Balderas's van and a garage. Bailey testified that the van obscured her view of the man at that point. Bailey heard a pop. A few seconds later, she heard a second pop and a scream. Due to safety concerns, she left the scene. As she left, she saw the man run away.

¶11 After Bailey returned to the scene, an officer told her that "You can't come in here." She responded, "Why can't I come in here? I was here when it happened." Bailey then left the scene because the police were not listening to her. After Bailey spoke to Harris, she returned to the scene a second time. Bailey again tried to give her eyewitness account to the same officer, who refused her again.

¶12 Detective Anna Ojdana testified that she reviewed her body camera footage and Bailey only approached her at the scene on a single occasion and did not try to give her information about the shooting. Detective Ojdana testified that Bailey approached her and said, "I lived around the corner I seen the cops here, I'm here to check on my friend." Detective Ojdana responded that Bailey's friend was not involved and the shooting did not take place in the house. The State moved into evidence Detective Ojdana's body camera footage and footage from a squad car.

¶13 On April 26, 2021, after hearing argument from both parties, the circuit court issued an oral ruling concluding that Bailey's testimony did not justify a new trial because it was merely cumulative, not material, and most likely would not change the result.

¶14 Balderas moved for reconsideration to present further testimony from another individual, Delvina Harris, who would corroborate that Bailey was present at the scene. Balderas complained that the hearing limited the testimony to "only" Bailey's testimony, but the State was permitted to call Detective Ojdana.

¶15 The circuit court denied the motion for reconsideration. The circuit court faulted Balderas for failing to timely object or seek to present Harris's testimony. In addition, the court noted that Harris was not an eyewitness to the shooting, and could not "offer any useful testimony about what happened." Even if Harris placed Bailey at the scene of the shooting, the court found that Bailey's testimony about what she actually saw was "not enough … to give rise to a reasonable probability of a different outcome at a new trial[.]" This appeal follows. Additional relevant facts are referenced below.

DISCUSSION

¶16 On appeal, Balderas contends: (1) the discovery of Bailey, a new witness, entitles him to a new trial as newly-discovered evidence, in the interest of justice, or a Brady violation;^[2] (2) the circuit court erred when it failed to provide a "castle doctrine" jury instruction; and (3) his trial was unconstitutional. We address each of these arguments in turn.^[3]

I. Bailey's testimony

A. Newly-Discovered Evidence

¶17 Balderas first contends that Bailey's testimony constitutes newly- discovered evidence.

¶18 To prevail on a newly-discovered evidence claim, a defendant must show by clear and convincing evidence that: "(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative." State v. Love, 2005 WI 116, ¶43, 284 Wis.2d 111, 700 N.W.2d 62 (citation omitted). If a defendant satisfies his burden on all four of these elements, the circuit court must then determine "whether a reasonable probability exists that a different result would be reached in a trial." State v. Avery, 2013 WI 13, ¶25, 345 Wis.2d 407, 826 N.W.2d 60 (citation omitted).

¶19 "The decision to grant or deny a motion for a new trial based on newly-discovered evidence is committed to the...