AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries
Full Opinion
COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 4, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP1709-CR Cir. Ct. No. 2019CF1815
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ANTHONY EDWARD PEARSON,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Milwaukee
County: JEAN M. KIES, Judge. Affirmed.
Before Brash, C.J., Dugan and White, JJ.
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).
No. 2021AP1709-CR
¶1 PER CURIAM. Anthony Edward Pearson appeals his judgment of
conviction, entered upon a jury’s verdict, for first-degree recklessly endangering
safety by use of a dangerous weapon, two counts of possession of a firearm by a
felon, and two counts of disorderly conduct, with various repeater and domestic
violence penalty enhancers attached. Pearson argues that the trial court erred
when it admitted an out-of-court statement by a witness not at trial through the
doctrine of forfeiture by wrongdoing. We conclude that the trial court’s decision
to admit this statement was within its discretion and did not violate his rights
under the Confrontation Clause. Accordingly, we reject Pearson’s argument and
we affirm.
BACKGROUND
¶2 This case arises out of Milwaukee police officers responding to a
ShotSpotter1 report of numerous shots being fired on North 33rd Street in
Milwaukee in April 2019. According to the criminal complaint, police found
spent cartridge casings in the street and near the house as well as bullet strikes that
went through the walls of the house. The police investigation showed that the
bullets and casings were from two firearms: a .40 caliber and a .45 caliber. There
were four adults and three children inside the house at the time of the shooting.
The suspected shooter was reported to have fled in a black Honda Civic.
1
Testimony by Milwaukee police explained that ShotSpotter is technology that “detects
gunfire.” It has been used in Milwaukee for approximately twenty years. ShotSpotter sensors
detect and identify gunfire, and its algorithm distinguishes gunfire from “fireworks” or a “car
back firing.” Milwaukee police are then dispatched to investigate. See also State v. Nimmer,
2022 WI 47, ¶4, 402 Wis. 2d 416, 975 N.W.2d 598.
2
No. 2021AP1709-CR
¶3 The complaint continued with the police officers and detectives’
contact with people at the scene. First, Serena identified Pearson as her husband
and the father of her child as well as the person who shot at the house. 2 Serena
reported that she had gone to a tavern that evening with Pearson, Christine, who is
Pearson’s sister, and Aaron, who is Christine’s husband. Pearson became upset
with Serena for talking to someone else at the tavern. On the drive home, Pearson
and Serena drove together and Pearson twice used his left hand to squeeze
Serena’s neck and impede her breathing. When they all arrived at Christine’s
residence on North 33rd Street, Christine confronted Pearson about his abuse of
Serena in the car; in response, Pearson struck Christine. The fight moved outside
and was broken up by Serena and Desmond, who is Pearson and Christine’s
nephew. Serena told police she went inside the house and thirty seconds later, the
house was shot up.
¶4 Serena also informed police that Pearson was a felon, but he had
access to two firearms that belonged to her—a 9mm handgun and a .40 caliber
handgun—that were kept in a gun safe in Pearson’s car.
¶5 Christine told police that she was with Serena in the kitchen of her
residence on North 33rd Street after they got back from the tavern. Pearson and
Serena got into a fight, Pearson pushed Serena out of her chair, then said he was
heading outside, and then punched Christine in the nose. Pearson exited the house
twice, while stating, “y’all gonna see.” Christine closed the door and immediately
heard shots fired directly at the house.
2
To protect confidentiality and for ease of reading, we refer to the witnesses and victims
in this matter by pseudonyms. See WIS. STAT. RULE 809.86 (2021-22). All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
3
No. 2021AP1709-CR
¶6 Aaron’s conversation with police confirmed that the four of them
visited a tavern; Serena and Pearson argued over her talking to another person; and
there was an argument when they returned to North 33rd Street. Aaron told
Pearson to leave, and Pearson stated, “y’all gonna see.” Moments after Pearson
left the house, Aaron recalled hearing approximately seventeen shots in two
bursts.
¶7 The police also spoke with Desmond, who recounted that Pearson
was in an argument in Christine’s residence on North 33rd Street and then went
outside, where Desmond saw Pearson go to his car, pull a gun case out of the
vehicle, and several seconds later, “the house was shot up.” Desmond told police
that Pearson had shown him two separate guns in the same gun safe approximately
a week before the shooting.
¶8 Additionally, the police spoke with Pearson and Christine’s mother,
who reported to police that Christine called during the incident and said that
Pearson had shot up her house. She then stated that Pearson called her and
claimed that Christine had shot at him; to which Pearson’s mother responded that
she did not believe him and Pearson apologized.
¶9 Pearson turned himself in to police, and upon questioning, he first
denied being with his wife on the night of the shooting, stating he was under a no-
contact order with her. When told there was video of Serena at the bar with him,
Pearson admitted they were together. He stated that he did not get physical with
Serena in the car, but admitted to accidentally punching her when they were back
at the residence on North 33rd Street. He stated he left in his car to clear his head
and he left when he heard gunshots because he assumed they were aimed at him.
4
No. 2021AP1709-CR
He did not immediately report the shooting to police because he was on parole and
he did not want to go to jail.
¶10 In May 2019, the State issued the information against Pearson,
which set forth five counts: first-degree recklessly endangering safety, with use of
a dangerous weapon, the habitual criminality repeater, and the domestic abuse
assessment penalty enhancers contrary to WIS. STAT. §§ 941.30(1), 939.63(1)(b),
939.62(1)(b), 973.055(1); two counts of possession of a firearm by a person
convicted of a felony with the repeat firearms crimes mandatory minimum
sentence penalty enhancer contrary to WIS. STAT. §§ 941.29(1m)(a), 939.6195(2);
and two counts of disorderly conduct with the habitual criminality repeater and the
domestic abuse assessment penalty enhancers contrary to WIS. STAT.
§§ 947.01(1), 939.62(1)(a), 973.055(1).
¶11 The case against Pearson proceeded toward a jury trial. On the
morning of the first day of trial in September 2019, the State informed the court
that it filed a motion to introduce Serena and Desmond’s out-of-court statements
during the trial under the doctrine of forfeiture by wrongdoing. In the motion, the
State alleged that Pearson made several phone calls while in custody at the
Milwaukee County Criminal Justice Facility (CJF). Pearson made at least four
calls to Serena. When the police reviewed the call recordings, in a call on
April 25, 2019, Serena told Pearson that his daughter, Sondra, would need to
contact his probation officer for him. In a call on April 27, 2019, Pearson called
Sondra and asked her to reach out to her uncle David and ask his son (Desmond)
to spare Pearson’s life. Pearson told Sondra that “D” saw him do it and he was a
witness against Pearson. Sondra agreed to try to reach out in person to her uncle.
5
No. 2021AP1709-CR
¶12 The State’s motion also recounted that after reviewing Pearson’s
phone calls, his voice, and his location, the police concluded that Pearson next
called Serena from another inmate’s account, telling her she should get a new
number because they were not supposed to have contact. After discussing the
account in the police report, Pearson told Serena that her account and Desmond’s
account of the night of the shooting were “killing” him. Serena called Pearson
from a different number and they discussed that Desmond was also in jail.
¶13 The State’s motion further set forth that from April 24, 2019,
through May 3, 2019, Pearson called Serena more than seventy times. In multiple
calls, Serena told Pearson she loved him and she will come or not come to
proceedings depending on what he thinks is best. When served with a subpoena to
testify during the final pretrial conference, Serena was upset and she called the
DA’s office three days before trial stating she refused to testify. A process server
attempted to serve Desmond with a subpoena to testify; however, an individual
matching his description was uncooperative and refused to sign.
¶14 The trial court conducted a hearing that same day on the motion for
forfeiture by wrongdoing. Serena was identified in the gallery of the courtroom;
therefore, the State withdrew its request with regard to Serena. The State
presented testimony first from a detective who reviewed Pearson’s recorded jail
phone calls and who conducted the second interview with Pearson after he turned
himself in. The detective’s testimony consisted of the facts alleged by the State in
its motion. The State called the victim/witness advocate who testified about the
State’s three failed attempts to serve Desmond. In the first attempt at the address
on file for Desmond, a woman answered the door and said he wasn’t home. In the
second attempt, a woman, who identified herself as Desmond’s grandmother,
answered the door stating she did not know where he stayed and that she saw him
6
No. 2021AP1709-CR
there from time to time. In the third attempt, a man generally matching
Desmond’s description answered the door and refused to sign the subpoena.
Finally the State called Desmond’s former attorney, who testified that the address
used by the State’s process server was the address he used to reach Desmond, and
his mail had not been returned.
¶15 The trial court found that the State made “made a good faith effort
and exercised due diligence to secure the witness’ presence by virtue of their
efforts on those three occasions to get him the subpoena.” Then, the trial court
analyzed that Pearson’s phone calls showed that he had the requisite intent to
prevent Desmond from testifying. The court concluded that the State met its
burden under the doctrine of forfeiture by wrongdoing to introduce Desmond’s
statements through the police detective witness testimony.
¶16 The trial then continued. The State called Serena, whose testimony
was somewhat similar to that recorded in the criminal complaint; although she
denied domestic violence by Pearson. The State called multiple police officers
and detectives who responded to the shots fired complaint and who investigated
the shooting in various ways.
¶17 Turning to the issues related to Desmond, the State called a detective
who recounted Desmond’s statements on the night of the shooting. The detective
testified that Desmond told him he watched three children—Pearson and Serena’s
young daughter and Christine and Aaron’s two children—while the four adults
went to the tavern. When the adults arrived home, Desmond took the kids into the
kitchen, away from the adults. He returned to the front when he heard Serena
scream and he saw Christine and Pearson physically fighting. Desmond and
Serena broke up the fight when it spilled outside in front of the house. He
7
No. 2021AP1709-CR
observed Pearson open the trunk of the black Honda and retrieve the gun safe.
Desmond then closed the door, leaving Pearson outside.
¶18 The detective’s testimony continued, stating that Desmond
recounted that the moment after shutting the door, Desmond heard shots being
fired and he thought that Pearson was the shooter because Pearson was alone
outside at the time of the shooting. Desmond told the detective that Pearson had
shown him the gun safe and the guns about a week earlier. During cross-
examination, the detective clarified that Desmond did not claim he could see
Pearson open the safe, he did not know what was in the safe the night of the
shooting, he could not see into the trunk, and that he did not claim to see Pearson
shoot.
¶19 The State then called the detective who both was part of the
investigation of the shooting and who reviewed Pearson’s jail calls. He testified
that Pearson and Serena had many phone calls: in some she used a pseudonym,
but the detective could recognize her voice; in some they discussed financial
matters; and in some they discussed the case. The detective also reviewed calls
between Sondra and Pearson, and specifically discussed the call in which Pearson
asked Sondra to reach out to Uncle David, who is Desmond’s father, to try to talk
Desmond into saving Pearson’s life. The State played the recorded call while the
detective was on the witness stand. The State also played a call in which Pearson
stated that it was Serena and Desmond’s statements that would hurt him, not
Christine and Aaron’s statements, as he originally thought.
¶20 The jury returned guilty verdicts on all five counts against Pearson
on September 20, 2019. In November 2019, the trial court imposed an overall
term of sentence of twenty two years, six months, divided as twelve years six
8
No. 2021AP1709-CR
months of initial confinement and ten years of extended supervision, with
consecutive and concurrent sentences imposed on the various counts.
¶21 Pearson now appeals.
DISCUSSION
¶22 Pearson argues that the trial court erred when it granted the State’s
motion to admit Desmond’s out-of-court statements under the doctrine of
forfeiture by wrongdoing. Pearson argues that the State failed to satisfy the
prerequisites of the doctrine, arguing that the State failed to prove that Desmond
was unavailable to testify, or to prove that Pearson was the cause of Desmond’s
failure to appear because there was no evidence to suggest that Desmond was
aware that Pearson was concerned about his testimony.
¶23 Although the trial court’s decision to admit evidence is ordinarily
within its discretion, we independently review whether the admission of an out-of-
court statement violates a defendant’s Confrontation Clause right. State v.
Reinwand, 2019 WI 25, ¶17, 385 Wis. 2d 700, 924 N.W.2d 184.3 We accept the
trial court’s findings of fact unless they are clearly erroneous. State v. Baldwin,
2010 WI App 162, ¶30, 330 Wis. 2d 500, 794 N.W.2d 769. “A trial court properly
exercises its discretion when the record shows it ‘examined the relevant facts,
applied a proper standard of law, and, using a demonstrated rational process,
3
It appears undisputed that Desmond’s statement to police was testimonial. “Statements
taken by police officers in the course of interrogations are also testimonial under even a narrow
standard.” Crawford v. Washington, 541 U.S. 36, 52 (2004). Desmond’s statement was taken at
a crime scene, not in a custodial interrogation interview. Nonetheless, we will consider the
statement to be testimonial for the purpose of our analysis.
9
No. 2021AP1709-CR
reached a conclusion that a reasonable judge could reach.’” Id., ¶31 (citation and
one set of quotation marks omitted).
¶24 The Confrontation Clause of the Sixth Amendment to the United
States Constitution states that “[i]n all criminal prosecutions, the accused shall
enjoy the right ... to be confronted with the witnesses against him[.]” U.S. CONST.
amend. VI; see also WIS. CONST. art. I, § 7; Reinwand, 385 Wis. 2d 700, ¶19. An
exception from the protections of the Confrontation Clause is “forfeiture by
wrongdoing, which permit[s] the introduction of statements of a [declarant] who
was detained or kept away by the means or procurement of the defendant.”
Baldwin, 330 Wis. 2d 500, ¶34 (citations omitted and internal quotation marks
omitted; second set of brackets in Baldwin).
¶25 The forfeiture by wrongdoing exception is “applied only when the
defendant engaged in conduct designed to prevent the witness from testifying.”
Giles v. California, 554 U.S. 353, 359 (2008). In our analysis to determine the
application of the doctrine, we consider two prongs. The first prong is whether the
witness is “unavailable” pursuant to WIS. STAT. § 908.04, and whether the
proponent of the testimony made a good faith effort and exercised due diligence to
secure the witness’s presence, see Baldwin, 330 Wis. 2d 500, ¶48. The second
prong is whether the defendant was the substantial cause of the witness’s
unavailability, see State v. Rodriguez, 2007 WI App 252, ¶15, 306 Wis. 2d 129,
743 N.W.2d 460, and whether the defendant intended to prevent the witness from
testifying, see Giles, 554 U.S. at 359. The State bears the burden to prove by a
preponderance of the evidence that forfeiture by wrongdoing doctrine applies.
Baldwin, 330 Wis. 2d 500, ¶37.
10
No. 2021AP1709-CR
¶26 We begin with unavailability. It is undisputed that Desmond did not
show for trial. The State asserts that it attempted with due diligence and good
faith efforts to have Desmond appear through use of the process server and
subpoena. This complies with WIS. STAT. § 908.04(1)(e). However, Pearson
argues that the State’s efforts were insufficient and lacked due diligence. He
contends that the State failed to provide testimony from the process server who
had personal knowledge of the service attempts and that it was insufficient to rely
upon the victim/witness advocate’s testimony. However, as the State points out,
there is no requirement that the process server testify in court. Pearson provides
no legal authority to compel the process service to testify and we decline to
develop such an argument for him. See State v. Pettit, 171 Wis. 2d 627, 646-47,
492 N.W.2d 633 (Ct. App. 1992).
¶27 Further, Pearson argues that Desmond was not unavailable because
the State failed to prove that the residence used by the process server was
Desmond’s actual address. Pearson contends that Desmond’s former attorney’s
testimony only supported that Desmond used that address for a mailing address,
not that he resided there and could be found there. Pearson argues that Desmond’s
purported grandmother did not claim he lived at that address, merely that he was
there from time to time. We reject this argument because Pearson offers no
evidence that Desmond does not live at his legal mailing address and instead only
speculates about other addresses.
¶28 Pearson argues that the State did not present any evidence of any
search for Desmond, other than the three attempts at service at the same place.
Pearson objects that the State did not employ an arrest warrant or body attachment
to find Desmond. However, we have rejected this argument previously and
Pearson offers no legal authority for his contention that a body attachment is
11
No. 2021AP1709-CR
needed to show due diligence. See Baldwin, 330 Wis. 2d 500, ¶47. Pearson also
argues that the State’s efforts were insufficient because it only attempted to serve
Desmond ten days prior to trial—a trial date that was known for two and a half
months before trial. We reject this argument as well. There is no evidence in the
record that suggests that additional notice would have impacted Desmond’s
availability.
¶29 We conclude that the State made a good faith effort and acted with
due diligence to secure Desmond’s presence in court. The record reflects that the
State’s process server made three attempts at an address Desmond used for legal
purposes. The people answering the door did not give an alternative address for
Desmond. The third attempt may have been to Desmond himself, but the person
matching his description refused to identify himself or sign for the subpoena.
Accordingly, we conclude that the trial court’s conclusions that the State proved
the first prong by a preponderance of evidence are not an erroneous exercise of
discretion and its findings are not clearly erroneous.
¶30 Turning to the second prong of the forfeiture analysis, we must
consider whether Pearson was the cause of Desmond’s unavailability and that his
actions were intended to prevent Desmond’s testimony.4 Pearson argues that the
4
As a threshold issue, the State argues that Pearson conceded this part of the analysis in
the motion hearing. The record reflects that Pearson’s trial counsel stated, “I believe element two
has been met. If they don’t show up, then this is allowed in. If they do show up, then it’s
moot[.]” Pearson disputes any concession, stating that in the same hearing, trial counsel argued
that the only record of Desmond’s reaction to Pearson’s calls to Serena and Sondra was that
Uncle David relayed that he could not make Desmond do anything. Trial counsel further argued
that Desmond was an “independent thinker” and that the State failed to show that Pearson’s
actions had any effect on Desmond’s availability. We conclude that even if Pearson did not
concede the causation part of the analysis, there is sufficient evidence in the record regarding
whether Pearson caused Desmond not to appear. Therefore, we will decide this claim on the
merits and not on the issue of whether or not he conceded or forfeited the claim.
12
No. 2021AP1709-CR
State failed to show that he caused Desmond not to appear because there is no
evidence in the record that Desmond was aware that Pearson was worried about
Desmond’s testimony and further, no evidence that Desmond was affected by
Pearson’s concern. Pearson argues that instead, the evidence supports a
reasonable inference that Desmond was an independent thinker who was free from
Pearson’s influence.
¶31 The State argues that the voluminous phone calls from Pearson to
Serena and Sondra showed Pearson’s intent to prevent Desmond from testifying.
The detective who reviewed Pearson’s jail calls stated that Pearson described
Desmond’s testimony as “killing him.” The detective’s testimony showed
Pearson’s repeated attempts to have his wife or his daughter reach Desmond
directly or to reach Pearson’s brother who could then reach Desmond. The record
reflects that Pearson asked Sondra to contact her uncle and “tell him to convince
his son to spare [Pearson’s] life.” Pearson told Sondra that “D” had seen Pearson
“do it” referring to the shooting. Pearson told Serena that he was afraid Desmond
would testify against him. Our inquiry here focuses on the intent behind Pearson’s
actions. We conclude that Pearson’s phone calls showed the requisite intent to
prevent Desmond from testifying.
¶32 Finally, the State argues that when we analyze causation under the
forfeiture analysis, there need not be threats or violence to satisfy the inquiry. The
trial court is allowed to draw reasonable inferences from the facts in the record.
The record reflects a large number of calls and pressure from Pearson to Serena
and Sondra with a recurring focus on preventing Desmond from testifying. The
trial court’s conclusion that Pearson’s conduct was the cause of Desmond’s
unavailability at trial was a reasonable inference from the facts in the record.
Accordingly, we conclude that the trial court’s conclusions that the State proved
13
No. 2021AP1709-CR
the second prong by a preponderance of evidence are not an erroneous exercise of
discretion and its findings are not clearly erroneous.
¶33 We conclude that the trial court’s decision to admit Desmond’s
statements under the doctrine of forfeiture by wrongdoing was a reasonable
exercise of discretion. The court considered the relevant facts of Desmond’s non-
appearance at trial, the State’s efforts to serve him with a subpoena to appear, and
Pearson’s concerted telephonic efforts to prevent Desmond from testifying. The
trial court considered the proper standard of law for forfeiture by wrongdoing and
demonstrated rational decision-making when it reached its conclusion. See id.,
¶31. Therefore, we reject Pearson’s claim that the trial court erred when it
admitted Desmond’s statements.
¶34 Further, we conclude there has been no violation of Pearson’s rights
under the Confrontation Clause. Pearson forfeited, by his own misconduct, his
right to confront Desmond. See Rodriguez, 306 Wis. 2d 129, ¶¶17-18.
CONCLUSION
¶35 For the reasons stated above, we conclude that the trial court’s
decision to admit Desmond’s out-of-court statement against Pearson was not an
erroneous exercise of discretion and did not violate his rights under the
Confrontation Clause.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
14
Case Information
- Court
- Wis. Ct. App.
- Decision Date
- April 4, 2023
- Status
- Precedential