State v. Words

1

State of Wisconsin, Plaintiff-Appellant, v. Devon E. Words, Defendant-Respondent.

No. 2022AP1832-CR

Court of Appeals of Wisconsin, District I

June 18, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. (2021-22).

APPEAL from an order of the circuit court for Milwaukee County, Cir Ct. No. 2018CF3372 GLENN H. YAMAHIRO, Judge. Reversed.

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 The State of Wisconsin appeals the order granting Devon E Words a new trial based on ineffective assistance of counsel. A jury convicted Words of second-degree intentional homicide and possession of a firearm by an adjudicated delinquent for shooting an acquaintance during an argument. Words moved for postconviction relief and a new trial based on ineffective assistance of counsel. After a Machner^[1] hearing, the postconviction court granted Words's motion. We conclude that Words is not entitled to a new trial. While we assume without deciding that trial counsel had instances of deficient performance, these errors did not prejudice Words's defense. Under the totality of the circumstances Words received a fair trial, and our confidence in the result is not undermined. Therefore, we reverse the order granting Words a new trial.

BACKGROUND

¶2 According to the criminal complaint and trial testimony Words shot Byron Burrows during a physical confrontation outside of a duplex in the 3100 block of North 92nd Street in Milwaukee on March 21, 2018. Words was meeting the property owner and her real estate agent to discuss purchasing the property with his girlfriend, Michelle Brooks, who lived in the upper unit. Brooks got into an argument with Deondra Brown, the tenant in the lower unit. Words and Brown's boyfriend, Burrows, joined the women's altercation, which turned physical and all parties spilled outside. According to the medical examiner's report, Burrows died of a single gunshot to the back of the neck.

¶3 In February 2019, Words filed a motion in limine requesting a pretrial ruling on the admissibility of a Facebook post allegedly written by Burrows: "Talking about giving her what she want naw... give it to me ... I want that smoke.... And we can clean take this shit off Facebook cause it clear we both know [where] the fuck to find each other."^[2] Words argued that the Facebook post gave context to the dispute and that the reference to "smoke" in Burrows's post showed that Burrows wanted to get into a gun-aided confrontation with Words. In March 2019, the circuit court considered the Facebook post "very interesting" but wondered how it could be introduced when it was hearsay and how Words could establish a foundation that Burrows actually wrote it. The circuit court left the issue pending, and trial counsel informed the court he would review supportive case law.

¶4 The case proceeded to a jury trial in March 2020. Trial counsel, reviewing the motions in limine for the benefit of the trial court and the prosecutor, stated that the circuit court "excluded Facebook messages relating to Mr Burrows on the grounds that the defense was unable to show that he had posted those messages. It's our understanding that the other messages are admissible."^[3] The prosecutor noted that Facebooks posts not written by Burrows might come in as evidence depending on the testimony, and trial counsel stated that he understood he would "need to lay foundation for the Facebook messages if they are introduced." The trial court concluded that any posts written by Burrows were excluded.

¶5 The State presented several witnesses who established the timeline of the shooting and Milwaukee Police Department (MPD) investigation. Both a neighbor and an off-duty MPD officer testified to hearing the shot and seeing a man laying on the ground, and seeing another man standing next to him before fleeing. The neighbor also testified that the standing man had a gun in his hand.

¶6 Brooks testified that she saw Words arrive at the property to meet with her, the property owner, and the real estate agent. She testified that she fought with Brown, and then Burrows walked up and slapped her in the face and hit her. Brown then grabbed her by the hair, and Burrows and Brown attacked her. She testified that she "saw [Burrows] pull the firearm out and point it at [Words] and [she] freaked out."

¶7 The property owner testified that she was meeting her real estate agent, Words, and Brooks to discuss selling the property. She testified about text messages between Brown and herself that focused on Brown's resistance to letting Words walk through her unit. She testified that she was in the kitchen when she heard Brooks come down the stairs and then heard Brooks and Brown argue. She went outside when the altercation started. She saw Burrows hit Brooks. She recalled that Words told her to call 911 as the altercation spilled outside; she was on the phone with 911 when she heard the shot.

¶8 The real estate agent testified that he saw the physical altercation, heard the shot, and called 911. He testified that Brooks came downstairs and started screaming at Brown and Burrows, and then the property owner and Words arrived. The real estate agent tried to keep the factions separate, but then things got louder and he and the property owner went outside. When Brooks and Brown starting physically fighting, Words and Burrows spilled outside as well, punching each other in a "death struggle" without speaking. He saw Burrows on the ground, laying on his back, fighting with Words on top of him. He heard the shot while on the phone with 911. He watched Words run to his vehicle and drive away quickly.

¶9 Brown testified that Brooks had been aggressive in their verbal altercation. She testified she heard Burrows say, "[p]ut the gun down, fam." She saw that Burrows was on the ground and Words was behind him, but then Words stepped back from Burrows and shot him. Brown testified that she saw Words run upstairs after the shooting and Brooks ran after him, then he came downstairs and took off in his truck. Brown testified that she believed Burrows did not have a gun when he arrived that day because she hugged him and did not feel one, although she admitted she did not feel his pockets, jacket, or ankle.

¶10 An MPD detective testified that through police records and 911 phone records, the police ascertained that the shooting took place at 7:14 p.m., officers arrived on site by 7:18 p.m., and Words was no longer on the premises.

The detective testified there was an extensive search of the outside area where the shooting occurred and no casing or other ballistics evidence was found.

¶11 The medical examiner testified that the cause of Burrows's death "was complications of gunshot wound of the head and neck." She testified that a bullet entered at the back of his neck and exited at the top of his head. She opined that the cause of death was homicide because "[f]or a person to shoot themselves in the back of the neck at that angle isn't really physically possible[.]" She also testified that based on wound characteristics, the gunshot came at indeterminate range, meaning more than twelve to eighteen inches away. During cross-examination, trial counsel introduced an image of a hypothetical scenario of two men engaged in a wrestling altercation similar to Burrows and Words, with the man on top holding a firearm with the muzzle at least twelve inches away from the man on the bottom. The medical examiner testified that the position of the men would be a plausible scenario.

¶12 Words testified in his own defense. He testified that he arrived to a chaotic scene inside the building and he tried to calm everyone down. Words denied that he went upstairs before the physical confrontation. Words testified that while in the doorway, Brooks and Brown were "still going back and forth," then Burrows ran up to Words, yelling and pulling at his pants, and became physical with Words. Words testified that he turned and he saw Burrows with a "firearm in his waistband" and Words told the property owner to call 911. Words did not tell anyone about seeing the gun. Words testified that "[i]t happened so fast [but he] tried to avoid this at all cost[.]"

¶13 Words testified that Burrows was punching Brooks on the back, and Brown was pulling on Brooks's hair over the bannister. Then all four of them tumbled out the front door. Words testified that Burrows pulled out the firearm and pointed it directly at his face, Words then reached his left hand out and grabbed Burrows on the right wrist, and they fell to the ground and wrestled for the gun. Words testified that he was "too close, [he] had no choice but to try to take [Burrows] down." Words heard a pop and he remembered not letting go of Burrow's wrist. Words then hopped up fast and he was in shock. He testified that he never got control of the gun away from Burrows, stating that his hand stayed on Burrows's wrist. Words then "freaked out" and left. Words took the gun when he fled and threw it in a garbage can near North 86th Street and Lisbon Avenue. He turned himself in about three and one-half weeks after the shooting.

¶14 The State showed Words the defense's image of two men struggling that the medical examiner reviewed and allowed was a plausible explanation of the body positioning of Burrows and Words during the incident. While Words acknowledged what the image showed, he could not say it was accurate because he did not "remember [what] happened ... during the time ... when we were struggling over the firearm." He testified that he looked around after the shot...