In which, the appeal alleges, a defendant's other bad acts were told to jurors after the defense lawyer opened the door
"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story. I'll try to post excerpts from the responses as they are filed. That can be months after filing of the the appellate brief.
State v. Giovannie Rivera-Gonzalez
Appeal 23AP401
Filing attorney: Matthew Pinix
Judge: Milwaukee County Circuit Judge Jeffrey Wagner
Giovannie Rivera-Gonzalez was tried in 2019 for a 2001 murder. His lawyer, identified as Richard Henry Hart in online court records, told the jury that the the gun used in the crime was found the possession of a "Mr. Castillo" and not in the possession of Rivera-Gonzalez. Hart was trying to get the jury to doubt Rivera-Gonzalez's complicity in the murder.
Appellate attorney Matthew Pinix, in his brief to the District I Court of Appeals, laid out the problem with Hart's argument.
The trouble for defense counsel — and thus Giovannie — is that “Mr. Castillo” is merely one of Giovannie’s admitted aliases, which was obvious in the discovery. In response to defense counsel’s “Mr. Castillo” theory, the State introduced evidence proving that Giovannie is “Mr. Castillo,” which included lots of bad facts for the defense.
Hart also did not strike a juror who said during voir dire that he would have trouble making the right decision because the case involved a gun, Pinix said.
"No questions were asked of that juror to understand what troubles he was talking about, and he was seated on the jury," Pinix wrote.
The juror wrote a note to Milwaukee County Circuit Judge Jeffrey Wagner later, during deliberations, saying he (the juror, not Wager) did not think he could make the right decision.
"Without asking that juror any questions and on agreement of the parties, the court told that juror to just keep deliberating," Pinix wrote. "A guilty verdict issued shortly thereafter."
Wagner denied a post-conviction motion for a new trial based on ineffective assistance of counsel. Pinix is asking for that decision to be reversed.
Attorney Hart, in his opening trial statement, made clear his strategy:
A young man was shot to death. There’s no dispute about that. There should be a lot of dispute about who shot him. ...
First of all, I’m going to have to dispute right away with the district attorney about [the murder weapon]. This gun was not found on my client. It was found on a guy named Mr. Castillo. And he said he ultimately got it from my client. Now, that’s important because, again, you’re painting this picture of what happened 18, 19 years ago. Okay? You’re looking back at this.
Hart's theory quickly came unglued in front of the jury. A police officer testified that an informant told police 15 years earlier that the gun was stored as an exhibit in another Milwaukee County case, Pinix wrote.
On cross-examination of that officer, defense counsel exposed to the jury that the gun had been in the court’s possession because it “basically” had come “from another case that had been prosecuted” involving “the same defendant that is here today,” meaning “[Giovannie].”
The officer also said the gun was found in Rivera-Gonzalez's residence.
Another police officer testified that the gun was recovered during a battery investigation.
As with the prior witness, defense counsel’s cross-examination returned to his “Mr. Castillo” theory. His first question was, “Was there a Mr. Santiago Castillo-Ludo in that apartment as well?” This time around, though, things didn’t go as well for defense counsel. Instead, the witness’s answer derailed any attempt to put the gun in mystery man “Mr. Castillo’s” possession: “That was one of the names that [Giovannie] provided.” In other words, mystery solved: “Mr. Castillo”— defense counsel’s supposedly overlooked gun possessor — was none other than Giovannie himself.
And that’s true, at least according to the discovery that defense counsel had been provided pretrial.
A third witness, a retired detective, also testified and provided more damaging information.
He explained that he interviewed Giovannie following his arrest for drugs in 2001, which itself resulted from a domestic abuse complaint. Originally, testified the detective, Giovannie had given his name as Castillo-Ludo, but the officers were suspicious. So, they ran his fingerprints through an FBI database, which connected to the name Miguel Cruz. When officers returned to question Giovannie about that inconsistency, he gave up his real name. In addition to putting a pin in the “Mr. Castillo” kerfuffle, the retired detective explained that Giovannie admitted to buying the murder weapon with cocaine, rather than money.
Hart did not object to any of the testimony, Pinix said.
"Thus, that bad-character evidence was all before the jury when contemplating Giovannie’s guilt," he wrote.
Hart testified in postconviction proceedings that he had gone through the provided discovery before the trial and knew that "Castillo" and Rivera-Gonzalez were the same person.
To sow doubt, defense counsel planned to “challenge everything.” His overarching strategy was “to try to cast doubt and challenge credibility of all the witnesses.” He reasoned that there was no guarantee that anyone would figure out that “Mr. Castillo” was Giovannie’s alias and tell it to the jury. “[I]n [his] experience,” said defense counsel, “just because something is in a police report does not mean that is how it’s going to come out at trial.” He didn’t expect the police officers to testify inconsistently with their reports; he simply “hoped maybe they would say something different.”
Pinix returned to the topic of the juror who expressed doubt about coming to the right decision.
When the prosecutor asked during voir dire whether any of the potential jurors might have difficulty making a judgment in the case, Juror 23 raised his hand.
The following exchange took place:
JUROR: Number 23. Just I don’t believe in guns, and that might give me some trouble making the right decision.
THE COURT: This isn’t about guns, per se, or your philosophy on guns.
JUROR: No.
THE COURT: So, you know, there’s a number of people that don’t like guns.
JUROR: Just wanted to point that out.
THE COURT: It’s not going to help you get out.
JUROR: No, no, that’s not the point. I’m here already.
THE COURT: Okay.
No one asked additional questions and the juror was selected for the trial.
That same juror wrote to Wagner during deliberations: "I am having a problem making a decision about this case. I do not believe I can make the right decision.”
The judge responded: “please continue deliberations and follow the instructions by the Court.”
Both the defense and prosecution approved the response.
During postconviction proceedings, Hart said that he could not remember having identified any “ 'issue that would cause [him] to move to have [Juror 23] str[i]cken from the panel for cause,' ” Pinix wrote.
Wagner denied permission for Rivera-Gonzalez's counsel to question the juror about potential bias because, Wagner said,
“[t]here’s nothing in the records to show that the juror was subjectively biased.” Concerning trial counsel’s alleged ineffectiveness, the court explained, [T]here was an issue about ineffective assistance of counsel, which there was some testimony on by [trial counsel], as far as the strategic and how he handled the case, you know, strategically. Just for purposes of completion, the Court doesn’t find any ineffective assistance of counsel either, based upon the entire record of the case and testimony by [trial counsel]. Okay, thank you.
Concluding his brief, Pinix said:
On trial for murder, Giovannie’s trial counsel let him down. First, he put together a theory of defense based on a fantasy that he’d created: “Mr. Castillo” was different than Giovannie and that difference would create doubt in the jury’s mind. Second, when a juror twice told the court that he was having a problem making the right decision, trial counsel did nothing to remove that juror from the case. In either instance, trial counsel was ineffective, and Giovannie should have a new trial for it. Giovannie asks first that this Court reverse outright and remand to the circuit court for a new trial. In the alternative, Giovannie asks that this Court remand for further evidentiary proceedings at which Juror 23 can be called as a witness to testify regarding his bias.
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