State v. Carroll

1

State of Wisconsin, Plaintiff-Respondent, v. Jermichael J. Carroll, Defendant-Appellant.

No. 2022AP1209-CR

Court of Appeals of Wisconsin, District I

August 1, 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This opinion will not be published.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: No. 2017CF2783 JOSEPH R. WALL and GLENN H YAMAHIRO, Judges.

Before White, 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 Jermichael J. Carroll appeals his judgment of conviction for first-degree reckless homicide with the use of a dangerous weapon, attempted armed robbery, and possession of a firearm by a felon. He also appeals the order denying his postconviction motion.^[1] Carroll argues that there was insufficient evidence to support his convictions, and that he was denied his right to a speedy trial. He also argues that he is entitled to sentence modification on the grounds that his sentence is unduly harsh or unconscionable. Upon review, we reject Carroll's arguments and affirm.

Background

¶ 2 The charges against Carroll stem from an incident that occurred on May 31, 2017. According to the criminal complaint, Dylan Steffen and his friend, Z.P.D., were walking past a school parking lot in the area of South 2nd Street around 1:00 a.m., when suddenly a man came out of the parking lot and approached them. That man was holding a gun, and put Z.P.D. in a headlock. He told Z.P.D. to empty his pockets. Z.P.D. was able to break free, however, and he and Steffen began running away. Z.P.D. then heard a gunshot, and saw that Steffen had fallen to the sidewalk. Z.P.D. realized that Steffen had been shot, and called 911.

¶ 3 Z.P.D. provided a description of the shooter to police. He said that the shooter was wearing a blue track suit with a hooded sweatshirt, had a medium build, skin tone similar to milk chocolate, and was clean-shaven.

¶ 4 Steffen was transported to the hospital, where he died of a single gunshot wound to his back. An RP Luger brand 9mm bullet casing was recovered from the scene.

¶ 5 In the course of the investigation, police obtained video surveillance footage from the school parking lot. The video showed a white car driving into the lot shortly before the shooting, and then speeding away moments after the shooting. Photos of the car were shown on the news, and police received a tip that led to the car. Its owner was identified as Mark Riley Roberson.

¶ 6 Police interviewed Roberson. He said that his cousin Carroll, had been staying with him, and he allowed Carroll to use his car.^[2] Roberson further stated that Carroll had used his car on the evening of May 30, 2017, and that he was wearing a blue track suit that night, which he wore "all the time." Roberson also said that Carroll was armed with a 9mm handgun. Roberson's girlfriend, who was at Roberson's apartment that night, also told police that Carroll had been wearing a blue track suit, and that she believed that he had a firearm in his waistband.

¶ 7 Roberson stated that Carroll had returned to his apartment that night well after midnight. He said that Carroll was "nervous and sweating" when he returned, and told Roberson that he "had to strip somebody," which Roberson understood to mean he had robbed someone. Roberson also stated that Carroll's gun had "fresh marks" on the slide, consistent with having been recently fired.

¶ 8 Additionally, Roberson identified the white car in the surveillance video as his Chevrolet Impala. Police searched the car and discovered RP-brand 9mm ammunition, as well as ammunition for other types of guns.

¶ 9 Carroll was arrested ten days after the shooting; he was wearing a blue track suit at the time of his arrest. Z.P.D identified him in a live lineup.

¶ 10 A jury trial was scheduled for January 2018. However Carroll requested an adjournment to investigate a potential jailhouse informant. The trial was rescheduled for April 2018.

¶11 On the morning the trial was scheduled to begin, the State requested an adjournment because Roberson, who the State intended to call as a witness, could not be located. Roberson was subsequently arrested on a material witness warrant, and agreed to appear at Carroll's trial. The trial was rescheduled for September 2018.

¶ 12 At the September trial date, Roberson did not appear, and the State again requested an adjournment. The trial was rescheduled for January 2019.

¶13 Additionally, shortly after that adjourned September trial date, Carroll submitted a pro se motion for a speedy trial, pursuant to Wis.Stat. § 971.10 (2017-18).^[3] A hearing was held on October 15, 2018, to address that motion, at which time Carroll's counsel made an oral request for a speedy trial on Carroll's behalf. Since Carroll was represented, the parties agreed to calculate the speedy trial deadline date from October 15 rather than from the date that Carroll had filed his pro se motion. The rescheduled trial date for January 2019 fell within the ninety-day statutory guideline. See § 971.10(2)(a).

¶ 14 On the day of the trial set for January 2019, the State had to request another adjournment because Roberson again did not appear. Carroll's bond was converted to a personal recognizance bond and he was released, pursuant to the statutory requirements. See Wis. Stat. § 971.10(4).

¶ 15 The trial was rescheduled for May 2019; however, it was the third trial scheduled for that particular day. Carroll declined the possibility of being spun to another court. The trial was again rescheduled, to July 2019. However, on that trial date, Carroll informed his counsel that he wanted a notice of alibi filed and an alibi witness produced. Once again, the trial was rescheduled, to November 2019, at which time all parties were ready to proceed.

¶ 16 Z.P.D. testified regarding the robbery attempt and shooting. During cross-examination, counsel for Carroll focused particularly on the inconsistencies in Z.P.D.'s description of the shooter shortly after the incident as compared to Carroll's characteristics. For example, Z.P.D. had told police the shooter had a medium build, but counsel elicited testimony from Z.P.D. that Carroll had a large, muscular build. Z.P.D. had also reported that the shooter was clean-shaven; however, a picture taken of Carroll when he was arrested twelve days after the shooting showed he had a full beard. Counsel also pointed out that Carroll's skin tone was not the same color as a Hershey milk chocolate bar. Additionally, Z.P.D. had described the shooter as wearing a blue hooded sweatshirt, but the sweatshirt Carroll was wearing when he was arrested had no hood.

¶17 Roberson also testified. He stated that Carroll was wearing a blue track suit the day of the shooting. He also stated that he had let Carroll borrow his white Impala on the night of the shooting, and that he saw Carroll with his 9mm gun "in his hand" when Carroll returned later that night. Roberson further testified that Carroll had told him he had "stripped," or robbed, somebody while he was gone.

¶ 18 Roberson's girlfriend, Porsha Frazier, also testified at trial. Although she stated that she did not remember anything from that night, the State, for purposes of impeachment, introduced evidence that Frazier had told police that Carroll was wearing a blue track suit when he left Roberson's apartment that night, that he had taken Roberson's white Impala, and that she could tell that he had a firearm in his waistband.

¶ 19 Additionally, the jury saw the surveillance video from the school showing the white vehicle entering the parking lot just prior to the shooting, and then leaving the parking lot at a higher rate of speed. The jury also heard evidence regarding the 9mm bullet casing found at the scene of the shooting, and the 9mm ammunition recovered from Roberson's vehicle.

¶ 20 The jury found Carroll guilty of all three charges: first-degree reckless homicide with the use of a dangerous weapon, attempted armed robbery, and possession of a firearm by a felon. The trial court imposed consecutive sentences totaling seventy years of imprisonment.

¶ 21 Carroll filed a postconviction motion seeking to vacate his convictions or, in the alternative, to modify his sentences. He argued that there was insufficient evidence to establish that he was the shooter; that his right to a speedy trial was violated; and that his sentences were unduly harsh and excessive.

¶ 22 The trial court rejected Carroll's arguments. With regard to the insufficient evidence claim, it noted that the State's evidence was reviewed by the trial court both after the close of evidence and after the verdicts were rendered, and found to be sufficient to support the guilty verdicts. Regarding the speedy trial claim, the trial court noted that Carroll also had requested adjournments along with the State, and further, that Carroll was in custody for part of that time for an unrelated conviction, and therefore was not prejudiced.

¶ 23 Finally, with regard to Carroll's sentence, the trial court found that it was based on proper factors, and the basis for imposing consecutive sentences was thoroughly explained. Therefore, the court denied Carroll's postconviction motion. This appeal follows.

Discussion

Sufficiency of the Evidence

¶ 24 We first review Carroll's claim that there was insufficient evidence to establish him as the perpetrator of these crimes. When reviewing the sufficiency of the evidence this court "may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the [S]tate and the conviction, is so...