State v. McDougle

2013 WI App 43, 830 N.W.2d 243, 347 Wis. 2d 302, 2013 WL 791310, 2013 Wisc. App. LEXIS 204
CourtCourt of Appeals of Wisconsin
DecidedMarch 5, 2013
DocketNo. 2011AP2852-CR
StatusPublished
Cited by14 cases

This text of 2013 WI App 43 (State v. McDougle) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McDougle, 2013 WI App 43, 830 N.W.2d 243, 347 Wis. 2d 302, 2013 WL 791310, 2013 Wisc. App. LEXIS 204 (Wis. Ct. App. 2013).

Opinion

CURLEY, PJ.

¶ 1. Willie M. McDougle appeals the judgment convicting him of first-degree intentional homicide while armed, contrary to Wis. Stat. §§ [306]*306940.01(l)(a) and 939.63 (2007-08),2 and being a felon in possession of a firearm, contrary to Wis. Stat. § 941.29(2)(a). He also appeals the order denying his postconviction motion. MeDougle argues that trial counsel was ineffective for failing to object to testimony concerning the victim's cause of death given by a medical examiner who was in the room while the victim's autopsy was being performed but who did not actually conduct the autopsy, as well as the admission of reports that the testifying examiner relied upon in drawing his conclusions, but did not personally create. MeDougle also argues that trial counsel was ineffective for failing to object to the introduction of evidence that he had previously committed two felonies after he refused to stipulate to having been convicted of one felony for the purpose of proving the felon in possession charge. For the reasons explained herein, we affirm.

Background

¶ 2. MeDougle was charged with two counts: first-degree intentional homicide while armed, and being a felon in possession of a firearm. The complaint alleged that MeDougle shot and killed Larry E. Ponder during a bar fight at Diamonds Pub in Milwaukee on October 26, 2007.

¶ 3. MeDougle pled not guilty to both charges and trial commenced on January 5, 2009. At trial, numerous witnesses testified on the State's behalf, including two who saw MeDougle shoot Ponder and two who saw MeDougle holding a gun or something that looked like a gun during the time of the shooting. McDougle's theory of the case, as evidenced by his attorney's [307]*307opening statement, was that someone else shot Ponder. McDougle did not testify at trial.

Victim, Autopsy Evidence

¶ 4. At trial, assistant medical examiner Dr. Christopher Poulos testified on the State's behalf. Dr. Poulos testified that he had been present for Ponder's autopsy, but had not actually performed it. Instead, Dr. Jeffrey M. Jentzen, who was the Milwaukee County Medical Examiner at the time of the homicide, performed the autopsy and wrote the autopsy protocol.3

¶ 5. Dr. Poulos concluded that Ponder died from blood loss resulting from multiple gunshot wounds. In forming his conclusions, Dr. Poulos reviewed Dr. Jentzen's autopsy protocol as well as the photographs taken during the autopsy, the autopsy head and body diagrams, the x-rays in the file, the toxicology report, and the crime scene summary. Dr. Poulos testified that he reached his own independent opinion on the direction of the entrance and exit wounds. Also, while Dr. Poulos' opinions coincided with Dr. Jentzen's on some matters, they differed on others. For example, Dr. Poulos disagreed with Dr. Jentzen's opinion that one of the victim's wounds resulted from intermediate range gunfire. In his independent review of the autopsy photographs, Dr. Poulos did not observe the "stippling on the skin which is indicative of intermediate range fire."

¶ 6. Trial counsel did not object to Dr. Poulos' testimony, nor did counsel object to admission of Dr. Jentzen's autopsy protocol and body diagrams.

[308]*308 Evidence of Prior Convictions

¶ 7. On the first day of trial, trial counsel indicated that the State had provided him with a stipulation concerning the felon in possession of a firearm charge.4 The proposed stipulation was an admission that Mc-Dougle had a prior felony conviction.5 Although trial counsel explained to McDougle that, absent a stipulation, the State could tell the jury that he had been convicted of two prior felonies and the jury would find out that those felonies were for armed robbery and recklessly endangering safety, McDougle refused to stipulate.

¶ 8. The trial court conducted a colloquy with McDougle to ensure that he understood that if he did not stipulate the State would be able to "tell the jury about these two specific felony convictions." The following exchange occurred:

[TRIAL COUNSEL]: I did discuss with Mr. McDougle the possibility of stipulating to the second element of the [felon in possession of a firearm] offense ... that he's previously been convicted of a felony. I presented a draft stipulation for Mr. McDougle for his signature.
I explained to him that it was to his advantage to not have the felony conviction named to the jury, [and] that if he did not stipulate .. . the jury then would be given the name and case number of the previous felonies that he’s been convicted of, armed robbery and endangering - recklessly endangering safety ....
[309]*309I've explained to Mr. McDougle that it is to his benefit to ... stipulate to the fact of the prior felony, that it was not to his benefit to have these convictions actually named to the jury because they could prejudice the jury.
Mr. McDougle, however, has trust issues regarding the stipulation, and despite my efforts to explain it to him, he believes that somehow by signing this he's admitting to possessing a firearm ....
THE COURT: All right. Mr. McDougle, your attorney has indicated he's talked to you about... where it might not be in your best interests to have the jury know that you have the prior conviction for first-degree recklessly endangering safety while using a dangerous weapon and the armed robbery.
Now, I will tell you that I don't think it would bode well for you to have the jury hear that; however, it is your decision as to whether or not you want to hold the State to [its] burden to prove the second element, and the second element of the possession of a firearm by a felon [charge] is that you were convicted and you were - have a felony conviction ....
Do you understand that if you decide to have the State prove it, then they're going to be able to tell the jury about these two specific felony convictions? Do you understand that, sir?
THE DEFENDANT: Yes, sir, I do.
THE COURT: And do you prefer to do that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: Do you want any more time to talk with your attorney about this?
THE DEFENDANT: No, sir, I don't.
[310]*310THE COURT: Mr. McDougle, you have a copy of the stipulation?
THE DEFENDANT: Yes, sir, I have [a] copy from my attorney.
THE COURT: Okay, So you've had a chance to read that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: And you can read and write?
THE DEFENDANT: Yes, sir ... .
[TRIAL COUNSEL]: And, Judge, for the record ...

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Cite This Page — Counsel Stack

Bluebook (online)
2013 WI App 43, 830 N.W.2d 243, 347 Wis. 2d 302, 2013 WL 791310, 2013 Wisc. App. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcdougle-wisctapp-2013.