State v. Blakes

1

State of Wisconsin, Plaintiff-Respondent, v. Demetrius Undre Blakes, Defendant-Appellant.

No. 2023AP147-CR

Court of Appeals of Wisconsin, District I

July 30, 2024

This opinion will not be published.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. 2018CF1968, MICHELLE A. HAVAS, Judge. Affirmed.

Before White, C.J., Donald, P. J., and Colon, 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 Demetrius Undre Blakes appeals from a judgment of conviction entered upon a jury's verdicts, for attempted first-degree intentional homicide while using a dangerous weapon, first-degree reckless injury while using a dangerous weapon, and possession of a firearm by a felon. He also appeals the order denying his motion for postconviction relief on two claims: (1) ineffective assistance of counsel which was denied after a Machner^[1] hearing; and (2) resentencing due to the circuit court relying on inaccurate information at sentencing. Upon review, we affirm.

BACKGROUND

¶2 This case arises out of an altercation between Blakes and an acquaintance, C.K., outside of a gas station in the 2000 block of West Center Street in Milwaukee on April 20, 2018. According to the criminal complaint, during the physical fight, Blakes pulled out a handgun and shot C.K., who then went to the trunk of his car and pulled out a shotgun. Blakes fled the scene.

¶3 The case proceeded to trial in August 2019. C.K. testified that he and Blakes had known each other for about four years but had recently been on bad terms because he suspected Blakes had stolen property from him. C.K. testified that he was unarmed when he hit Blakes with his fists and a fight broke out. C.K. testified that Blakes pulled out a handgun and tried to shoot C.K. in the chest, but his gun "clicked" and jammed. Blakes then ran and C.K followed with caution, because he perceived Blakes as attempting "to unjam [the gun]." C.K. said he and Blakes were "moving around" each other, Blakes was "trying to get away" and they were "talking shit to each other[.]" C.K. testified that Blakes still had the gun pointed at him when it "went off." Although initially unsure if he had been hit, C.K. noticed blood on his shirt. Blakes "ran right in front of [C.K.'s] car." C.K. proceeded to the trunk of his car, from which he retrieved a shotgun, because Blakes "was still there, like he was trying to shoot still." By the time C.K. removed the shotgun, Blakes had run away.

¶4 The State played for the jury the surveillance video camera footage as well as showed still photographs from the gas station surveillance footage. C.K. testified that he hit Blakes in the face, his second swing missed, and he was unaware if he hit Blakes in the ribs. C.K. denied having martial arts or fighting training. He testified that he followed Blakes around the parking lot to try to disarm him. During cross-examination, C.K. testified that he attempted to shoot at Blakes with the shotgun, the gun misfired, but he was trying to kill Blakes. C.K. described Blakes as backing away from him, with the gun in his hand, which C.K. perceived as Blakes attempting to "bait" him.

¶5 Blakes testified that he approached C.K. at the gas station with friendly intent; however, C.K. "threw a right hand at [his] ribs and broke [his] ribs." He testified that he sought medical treatment for his injured ribs two days after the shooting. He punched C.K. twice, and then pulled out the gun he carried for his protection, which was meant to scare C.K. away. Blakes denied that the handgun jammed or that he tried to take a shot before the shot that hit C.K. Blakes and C.K. walked around each other, but when they drew close, Blakes shot him. Blakes testified he was not trying to kill C.K., but only trying to keep him away.

¶6 Prior to deliberations, the jury was instructed on self-defense. The jury returned a guilty verdict on all three counts: attempted first-degree intentional homicide while using a dangerous weapon, first-degree reckless injury while using a dangerous weapon, and possession of a firearm by a felon. The circuit court sentenced Blakes to thirty-three years, bifurcated as twenty-three years of initial confinement and ten years of extended supervision.

¶7 Blakes moved for postconviction relief on the basis of ineffective assistance of counsel. First, he asserted that trial counsel failed to introduce McMorris^[2] evidence that Blakes knew of C.K.'s habit of being armed. Second, he contended that trial counsel failed to introduce medical records evidence that Blakes suffered broken ribs as a result of this incident. Third, he argued that trial counsel was ineffective for failing to request a lesser included offense of second-degree reckless injury.^[3]

¶8 The circuit court granted Blakes a Machner hearing on his claims, during which both trial counsel and Blakes testified in September 2022. The circuit court concluded that Blakes failed to meet his burden to show that trial counsel was ineffective. The court concluded that the proposed McMorris evidence was likely not admissible in the way Blakes would have presented it- the court noted that a habit of carrying a gun is not the same as Blakes presenting evidence of specific previous acts of gun-related violence by C.K. or evidence of a violent character. Next, the court concluded that trial counsel offered a strategic reason to not present the medical records because he then would have had to explain that Blakes lied to medical personnel that the injuries were caused another way, which would impugn Blakes's credibility. In light of the video and the totality of evidence at trial, the court concluded that there was no prejudice for failing to introduce the medical records. Finally, the court concluded there was no basis by which the jury could have found that Blakes acted without utter disregard for human life; therefore, there was no reasonable probability of a different result if counsel had asked for the lesser-included offense of second-degree reckless injury. The court noted that the ultimate defense strategy was acquittal on the basis of perfect self-defense, which was reasonable; therefore, counsel's reasoning not to pursue lesser-included offenses was not deficient.

¶9 With leave from this court, Blakes supplemented his postconviction motion to assert a claim that the court relied upon inaccurate information when it sentenced him. He asserted that the circuit court's sentencing remarks that C.K. ran away from Blakes and Blakes chased him during the altercation reflected a mistaken recollection by the court. Additionally, Blakes argued that a new factor warranted sentence modification based upon medical records supporting Blakes's claim that his ribs were injured during the altercation.

¶10 The circuit court's written decision denied Blakes's motion and supplemental motion in full. The court concluded that the medical records were not a new factor relevant to the imposition of his sentence because the records did not establish when Blakes was injured. The records themselves state that Blakes reported injuring his ribs running into a brick ledge, and even if the court accepted that C.K. was the true cause of the injury, the video evidence does not prove that C.K. punched Blakes before Blakes drew his gun or shot him. The court found that "the video showed that other punches were thrown after the victim was shot." (Emphasis in original.) The court concluded that the medical records would not change the court's reasoning because even if Blakes's version was true, he would have been justified to take a swing at C.K., who punched him first, but he was not justified to pull out a gun. Having concluded Blakes had failed to present a new factor, the court denied the motion for sentence modification.

¶11 The court denied Blakes's motion for resentencing based on Blakes's allegation that the court had sentenced him based on an inaccurate recollection of the video evidence. Blakes objected to the characterization that he chased C.K. The State argued that the video evidence supported the court's statement that Blakes ran toward C.K. during this encounter. The court agreed with the State and concluded that it did not rely upon inaccurate information at sentencing.

¶12 Blakes now appeals.

DISCUSSION

¶13 Blakes makes two sets of claims for postconviction relief. First, he asserts trial counsel was ineffective: (1) for failing to introduce McMorris evidence that he knew C.K. commonly carried a firearm; and (2) for failing to introduce evidence, in the form of medical records, that Blakes suffered broken ribs as a result of C.K.'s attack. Second, he contends that the circuit court relied upon inaccurate information, meaning the court's interpretation of the video evidence that Blakes was chasing C.K., when it sentenced him.^[4]

I. Ineffective assistance of counsel

¶14 To succeed on a claim of ineffective assistance of counsel the defendant must satisfy the two-prong test in Strickland v. Washington, 466 U.S. 668, 687 (1984): deficient performance and prejudice to the defense from that performance. To show deficient performance, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. To show prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The reviewing court need not address both...