State v. Fisher

1

State of Wisconsin, Plaintiff-Respondent, v. Walter Lamont Fisher, Defendant-Appellant.

No. 2022AP1663-CR

Court of Appeals of Wisconsin, District I

February 6, 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This opinion will not be published.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. 2018CF1940 DAVID A. FEISS, Judge. Affirmed.

Before White, C.J., Donald, P. J., and Geenen, 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 Walter Lamont Fisher appeals from a judgment of conviction for multiple offenses related to a shooting incident involving his former girlfriend and from an order of the circuit court denying Fisher's postconviction motion for a new trial or resentencing without a hearing. On appeal, he maintains that he is entitled to a new trial or resentencing and he argues that his constitutional right to a speedy trial was violated, newly-discovered evidence in the form of a recantation from his former girlfriend entitles him to a new trial, and he is entitled to resentencing based on a new factor. Upon review, we affirm.

BACKGROUND

¶2 On April 18, 2018, police responded to a call of shots fired at a residence at 804 West Somers Street in Milwaukee. When police arrived, Jana reported that Fisher, Jana's former boyfriend with whom she shared a child, came to her residence looking for Kyle, Jana's current boyfriend.^[1] Jana stated that Fisher forced his way inside, pointed a gun at Jana's head, and threatened to kill her if she did not get out of the way. She further stated that after Fisher went inside she heard shots being fired and she ran from the residence in her "bra and panties" to a neighbor's house to call the police. Kyle reported that Fisher showed up at the residence that night, he hid from Fisher in the bathroom, and he took cover in the bathtub when Fisher began firing shots through the bathroom door. Jana's seven-year-old son further provided that he was playing video games that night when he saw Fisher in the residence, and Fisher "just started shooting" at the bathroom door. Jana's son stated that he hid in the closet.

¶3 Fisher was charged with one count of attempted first-degree intentional homicide with use of a dangerous weapon, one count of first-degree recklessly endangering safety with use of a dangerous weapon with a domestic abuse assessment, one count of possession of a firearm by a felon, one count of felony bail jumping, and one count of misdemeanor bail jumping with a domestic abuse assessment for the events of that night.

¶4 Fisher's first trial in October 2018 resulted in a mistrial. Fisher subsequently entered a demand for a speedy trial, and the case was rescheduled for a second trial in January 2019.

¶5 When the case was called for trial in January 2019, the State informed the trial court that it was having difficulties locating its witnesses and "would need to ask for the case to be passed for a matter of minutes." The trial court passed the case, and when the case was recalled, the State indicated that the witnesses were available and it was now ready to proceed; however, the trial court rescheduled the trial for April 8, 2019.

¶6 In deciding whether to move forward with the trial or reschedule, the State noted that the first trial "took us five days" and the courthouse was going to be closed the next two days. The State also added that Fisher was currently serving a sentence on other charges and he would be in custody on those charges whether the trial moved forward or was rescheduled. The trial court similarly observed that the courthouse would be closed at the end of the week, and the closure of the courthouse would not provide enough time to finish the trial that week. Thus, the trial court rescheduled the trial for April 8, 2019.

¶7 At the final pretrial for the April 8, 2019 trial date, the defense requested to have the trial rescheduled in order to accommodate a trial date for a different case. The trial was again rescheduled for June 3, 2019.

¶8 When the case was called for trial on June 3, 2019, the State informed the trial court that it was unable to locate its witnesses and requested that the trial be adjourned. The trial court granted "a final adjournment" saying "[a]t this point given the very, very serious nature of these allegations and given the fact that Mr. Fisher is in custody on another matter I don't believe that an adjournment to a fall trial date would on its face not seriously violate his due process speedy disposition."

¶9 The case was rescheduled for trial on September 16, 2019. However, due to court congestion, the trial court was unavailable on September 16, 2019, and the case was rescheduled for trial on January 13, 2020.

¶10 Fisher moved to dismiss the charges based on a violation of his right to a speedy trial. The trial court denied his motion and stated, "[W]e're coming up on it's going to be longer than a year since his last trial. During this time period, there was one request by the defense to postpone the case. There had been two requests by the State and then the others are due to court congestion." Thus the trial court stated that Fisher's motion would be revisited if the case was unable to proceed at the next trial date.

¶11 Fisher ultimately stood trial in January 2020. Jana, Kyle, and Jana's son, along with other witnesses presented by the State, testified to the events of that night. The State further presented photographs of holes in the bathroom door and bathtub, and wood fragments and bullets in the bathroom.

¶12 Following the jury trial, Fisher was convicted of one count of first-degree recklessly endangering safety with use of a dangerous weapon, one count of possession of a firearm by a felon, one count of felony bail jumping, and one count of misdemeanor bail jumping with domestic abuse assessments. Fisher was given a total sentence of nineteen years of imprisonment, bifurcated as twelve years of initial confinement and seven years of extended supervision.

¶13 Fisher filed a motion for postconviction relief in which he argued that he was entitled to a new trial or resentencing. Specifically, he argued that his constitutional right to a speedy trial was violated, he had newly-discovered evidence in the form of an affidavit from Jana recanting her former statement that she saw Fisher with a firearm that night, and Jana's affidavit presents a new factor warranting resentencing.

¶14 The trial court denied Fisher's motion without a hearing. The trial court rejected Fisher's argument that his constitutional right to a speedy trial was violated "for the reasons set forth on the record at the November 4, 2019 motion hearing." The trial court further rejected Fisher's argument for a new trial based on newly-discovered evidence, and it called Jana's affidavit "plainly deficient" because it was based on "pure speculation" and uncorroborated. The trial court also found that there was no probability of a different result because of the other evidence introduced at trial that Fisher had a firearm. The trial court also rejected Fisher's argument that a new factor entitled him to resentencing because what Jana remembered seeing was not relevant for sentencing purposes.^[2]

¶15 Fisher now appeals. Additional relevant facts will be set forth as necessary.

DISCUSSION

¶16 On appeal, Fisher argues that the trial court erroneously denied his postconviction motion and that he is entitled to a new trial or resentencing. He argues that his constitutional right to a speedy trial was violated, and he argues that an affidavit from Jana recanting her previous statement that she saw Fisher with a firearm that night is newly-discovered evidence entitling him to a new trial or a new factor that warrants resentencing. We address each argument in turn.

I. Speedy Trial Violation

¶17 "Both the federal and state constitutions guarantee a criminal defendant the right to a prompt resolution of criminal charges made against him [or her] by the [S]tate." State v. Borhegyi, 222 Wis.2d 506, 509, 588 N.W.2d 89 (Ct. App. 1998). We use the four-part test set forth in Barker v. Wingo, 407 U.S. 514 (1972), to determine whether a defendant's constitutional right to a speedy trial has been violated. State v. Urdahl, 2005 WI.App. 191, ¶11, 286 Wis.2d 476, 704 N.W.2d 324. "We consider (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant." Id. "[T]he test requires us to consider the totality of circumstances that exist in each specific case to determine if a speedy trial violation has occurred." State v. Provost, 2020 WI.App. 21, ¶26, 392 Wis.2d 262, 944 N.W.2d 23.

¶18 Whether a defendant's constitutional right to a speedy trial has been violated is a question of law that this court reviews de novo. Urdahl, 286 Wis.2d 476, ¶10.

¶19 Assuming that the relevant time period begins when Fisher entered a speedy trial demand on October 22, 2018, the State does not dispute that the length of the delay in this case exceeded one year and is therefore presumptively prejudicial. See id., ¶12 ("Generally, a post-accusation delay approaching one year is considered to be presumptively prejudicial."). The State also does not dispute that Fisher asserted his right to a speedy trial in this case shortly after his first trial on October 22, 2018. Thus, we focus our analysis on the second and fourth factors: the reason for the delay and prejudice to Fisher.

¶20 Under the second factor, Fisher attributes the delays in his trial to the State and argues that "this case is government negligence at minimum, if not...