State v. Antwon Laurel Jones

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.
August 13, 2019
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. 2018AP1650-CR Cir. Ct. No. 2015CF61

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTWON LAUREL JONES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for
Milwaukee County: ELLEN R. BROSTROM and JEFFREY A. WAGNER,
Judges. Affirmed.

Before Kessler, Brennan and Kloppenburg, 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. 2018AP1650-CR

¶1 PER CURIAM. Antwon Jones appeals his convictions, entered on a
jury’s verdict, of two counts of felony murder and one count of felon in possession
of a firearm. Jones argues that trial counsel was ineffective in advising him
regarding a plea offer he rejected because counsel failed to inform him that the
State could pursue lesser included offenses at trial. In addition, Jones argues that
counsel was ineffective in several respects at trial. Jones also argues that the
evidence was insufficient to support his conviction on the felon in possession of a
firearm charge. We reject all of Jones’s arguments and affirm.

BACKGROUND

¶2 Jones was alleged to have participated in an armed robbery of a man
named Michael Taylor that resulted in the shooting deaths of both Taylor and
Jones’s accomplice Jeffrey White. Jones was also shot in the incident. The State
charged Jones with two counts of felony murder, with armed robbery as the
underlying felony, and one count of felon in possession of a firearm.

¶3 The State offered Jones a plea deal under which Jones would plead
guilty to two reduced charges of felony murder, with attempted armed robbery,
party to a crime, as the underlying felony, and the State would dismiss and read in
the felon in possession of a firearm charge. Jones rejected the offer and proceeded
to trial on the original charges.

¶4 After the close of evidence, the circuit court granted the State’s
request for a jury instruction on the lesser included offense of felony murder, with
attempted armed robbery, party to a crime, as the underlying felony, the same as
the reduced charges in the State’s plea offer. The jury found Jones guilty of the
lesser included offense on both felony murder charges. It also found Jones guilty
of the felon in possession of a firearm charge.

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¶5 Jones filed a postconviction motion claiming that trial counsel was
ineffective and that the evidence was insufficient to support his conviction on the
felon in possession of a firearm charge. The circuit court denied Jones’s motion
without an evidentiary hearing, and also denied Jones’s motion for
reconsideration.1

¶6 We reference additional facts as needed in the discussion section
below.

DISCUSSION

A. Ineffective Assistance of Trial Counsel

¶7 We begin with Jones’s ineffective assistance of trial counsel claims.
In reviewing whether the circuit court was required to hold an evidentiary hearing
on those claims, we examine whether the postconviction motion “on its face
alleges sufficient material facts that, if true, would entitle the defendant to relief.”
State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. This presents
a question of law that we review de novo. Id. “If the motion raises such facts, the
circuit court must hold an evidentiary hearing.” Id. However, the court need not
hold a hearing “if the motion does not raise facts sufficient to entitle the movant to
relief, or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief.” Id.

1
The Honorable Ellen R. Brostrom presided over trial and entered the judgment of
conviction. The Honorable Jeffrey A. Wagner entered the orders denying the motion for
postconviction relief and the motion for reconsideration.

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No. 2018AP1650-CR

¶8 Applying these standards here, we conclude for the reasons that
follow that the circuit court properly rejected each of Jones’s ineffective assistance
claims without an evidentiary hearing.

¶9 To demonstrate ineffective assistance of counsel, a defendant must
establish both (1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). We need not address both components of the inquiry if the
defendant makes an insufficient showing on one. See id. at 697.

¶10 As to deficient performance, the defendant must show that
“counsel’s representation fell below an objective standard of reasonableness.” Id.
at 688. The court “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689.

¶11 As to prejudice, the defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. “It is not
enough for the defendant to show that the errors had some conceivable effect on
the outcome.” Id. at 693.

1. Whether Trial Counsel Was Ineffective When Jones Rejected the Plea Offer

¶12 Jones first contends that trial counsel was ineffective in advising him
on the State’s plea offer because counsel failed to inform him that the State could
pursue lesser included offenses at trial. Jones alleged in his postconviction motion
that, because counsel failed to provide this information, Jones incorrectly believed
that the State would need to prove a completed armed robbery at a trial. Jones

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No. 2018AP1650-CR

further alleged that, had he understood that the State could pursue the lesser
included offense of felony murder based on attempted armed robbery, he would
have accepted the State’s plea offer instead of going to trial.

¶13 We conclude that, regardless of any possible prejudice, Jones fails to
establish that counsel’s alleged failure to provide lesser included offense
information was deficient performance. Jones’s allegations assume that, when
counsel advises a defendant on a plea offer, counsel necessarily has the duty to
inform the defendant that the State might pursue lesser included offenses at a trial.
However, Jones provides no legal authority stating this proposition. Absent such
authority, we decline to adopt a general rule as to counsel’s duties in this respect.
See Strickland at 690 (“[A] court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.”).

¶14 We are uncertain if Jones means to make an alternative argument
that, given the particular circumstances here, no reasonable counsel would have
failed to inform Jones that the State could pursue certain lesser included offenses
at trial. If Jones means to make that argument, we conclude that it is insufficiently
developed to overcome the strong presumption that counsel’s conduct was
reasonable.

2. Whether Trial Counsel Was Ineffective at Trial

¶15 We turn to Jones’s contention that trial counsel was ineffective at
trial. Jones argues that trial counsel was ineffective by: (1) failing to object to
certain testimony as hearsay; (2) conducting inadequate cross-examination of two
of the State’s witnesses; (3) failing to sufficiently challenge text message evidence
the State used to incriminate Jones; and (4) failing to adequately challenge the

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State’s theory that Jones possessed a firearm. Before discussing these arguments,
we provide additional facts from the trial as context.

¶16 Jones’s counsel, understandably, did not dispute Jones’s presence
during the shooting at Taylor’s residence. Jones’s presence at the scene was
established by DNA evidence. This included evidence showing that Jones was a
source of DNA from blood found at the scene, and that Taylor was the source of
DNA from blood found on one of Jones’s shoes. Additionally, an eyewitness in
the vicinity of Taylor’s residence testified that he saw a man he identified as Jones
running out of the residence shortly after he heard gunshots.

¶17 Thus, rather than dispute Jones’s presence during the shooting,
counsel argued that the State failed to prove that Jones had any intent or
knowledge of a plan to commit a robbery. Counsel asserted that Jones went to
Taylor’s residence only to purchase drugs. In addition, counsel argued that the
State failed to prove that Jones shot Taylor or otherwise possessed a firearm. No
guns used in the shooting were recovered by police.

a. Lack of Hearsay Objection

¶18 We turn to Jones’s argument that trial counsel was ineffective by
failing to object to hearsay. One of the State’s witnesses, Ivori Winston, testified
that she heard there was a large amount of money, $10,000 or $15,000, at Taylor’s
house on the day he died. Jones argues that counsel should have objected to this
testimony. He asserts that it was hearsay that was essential to the State’s case as
“the main evidence produced supporting the idea that sufficient money existed in
the house to make the house a potential target for armed robbery.” In essence,
Jones argues that this testimony was highly prejudicial because, without it, there

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No. 2018AP1650-CR

was little proof that Jones was attempting to rob Taylor when Taylor and White
were shot and killed.

¶19 We will assume, without deciding, that trial counsel should have
objected to this testimony as hearsay, and that the testimony should have been
excluded as such. Regardless, we conclude that the record conclusively
demonstrates that Jones cannot establish prejudice because there is no reasonable
probability that the jury’s verdicts would have been different in the absence of this
testimony.

¶20 To begin, this testimony was not, as Jones asserts, “the main
evidence produced supporting the idea that sufficient money existed in the house
to make the house a potential target for armed robbery.” A witness named Q.S.,
who was dating Taylor and frequently spent the night with him, testified that
Taylor sold drugs and that she had seen him handle $5,000 in his home. In
addition, a police detective testified that Taylor’s residence contained seventy-
eight pills, including Oxycodone and Percocet pills, as well as $679 in cash on the
day of the shooting. The detective also testified that drug houses often contain
large amounts of cash and are targets of robberies.

¶21 Further, Jones’s argument that the hearsay testimony resulted in
prejudice ignores other significant evidence supporting the State’s theory that
Jones and White were attempting to commit an armed robbery of Taylor. We
need not and do not exhaustively list all of this evidence but will summarize some
of it.

¶22 First, the jury heard evidence indicating that Jones and White sought
to conceal their identities. When police found White’s body, he was dressed in
black, and he was wearing gloves, a black knit cap covering the upper portion of

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No. 2018AP1650-CR

his face, and a scarf covering the lower portion of his face. Other evidence,
including testimony from the eyewitness who saw Jones run out of Taylor’s
residence, indicated that Jones was dressed similarly in all black.

¶23 Second, the jury heard testimony from a police detective that “flexi
cuffs” were found in White’s sweatshirt pocket, and that the detective had seen
flexi cuffs used to bind victims’ hands in home invasion robberies. The detective
also testified that, based on what he saw at the scene, he believed that White was
at Taylor’s residence to commit a robbery.

¶24 Third, the jury was presented with evidence that, when considered
with all of the other circumstances, provided reason to think that Jones, White, and
another accomplice, White’s brother Bobby, had all worked together to plan and
commit a robbery at Taylor’s residence. This included evidence that Jones, White,
and Bobby were seen together one or two days before the shooting; that Bobby
had been inside Taylor’s residence on previous occasions; that, on the morning of
the shooting, Bobby made sure that a friend of his who lived with Taylor was not
at home; and that Jones and Bobby exchanged several calls and a series of text
messages around the time of the shooting. The text messages read:

[Jones to Bobby:] “come on.”

[Bobby to Jones:] “okay.”

[Jones to Bobby:] “wtf.”

[Bobby to Jones:] “it’s over. He won’t come back. I
mean he won’t come period back.
We on PC.”

[Jones to Bobby:] “come on, … where you at.”

[Bobby to Jones:] “he won’t come period back.”

[Jones to Bobby:] “so now what?”

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No. 2018AP1650-CR

[Bobby to Jones:] “wait.”

[Bobby to Jones:] “where you at?”

[Bobby to Jones:] “Dis Bob, Dis Bob, pick up.”

¶25 Fourth, the jury heard evidence indicating that Jones and White
brought a firearm to Taylor’s residence. This included expert and lay testimony
establishing that Taylor kept a Glock type of gun in his residence; that two
different types of guns were used in the shooting; and that one of those two gun
types matched the Glock type that Taylor kept in his residence.

b. Cross-Examination of Witnesses

¶26 Jones contends that trial counsel was ineffective by conducting an
inadequate cross-examination of Ivori Winston and Q.S. In addition to the
testimony already described, Q.S. provided context for the shooting because she
was present in Taylor’s residence at the time. She testified that she was sleeping
in a bedroom when she awoke to loud “knocking” or “hammering” noises that she
eventually realized were gunshots, and that she did not leave the bedroom until the
police arrived.

¶27 Regardless whether trial counsel was deficient in cross-examining
Winston and Q.S., we conclude that Jones fails to sufficiently allege prejudice
resulting from counsel’s cross-examination of these witnesses. Jones’s
postconviction motion lacks allegations as to what Winston’s or Q.S.’s answers
would have been if counsel had asked additional questions. Absent such
allegations, Jones has not sufficiently alleged a reasonable probability that
additional questioning would have led to a different outcome. Rather, Jones
simply speculates as to the possible effects that additional questioning of Winston

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No. 2018AP1650-CR

or Q.S. might have had on the jury. “[M]ere speculation is insufficient” to show
prejudice. State v. Adams, 221 Wis. 2d 1, 13, 584 N.W.2d 695 (Ct. App. 1998).

c. Challenge to Text Messages

¶28 Jones claims that trial counsel was ineffective by failing to
sufficiently challenge the series of text messages between Jones and Bobby. This
claim has two parts.

¶29 Jones first claims that trial counsel was ineffective by failing to point
out how vague the text messages were. We disagree and conclude that the record
conclusively demonstrates that counsel was not deficient in this respect. Counsel
reasonably challenged the vagueness of the text messages’ content by pointing out,
through cross-examination and closing arguments, that the messages made no
apparent reference to a gun, drugs, a robbery, or other associated terms.

¶30 The second part of Jones’s claim is that trial counsel was ineffective
by failing to present information as to the “true context” of the text messages. As
to this part of Jones’s claim, we conclude that Jones fails to sufficiently allege
both deficient performance and prejudice because his postconviction motion does
not state what the “true context” was or how its disclosure would have affected the
outcome at trial.

d. Challenge to State’s Theory that Jones Possessed a Firearm

¶31 Jones claims that trial counsel was ineffective by failing to
adequately challenge the State’s theory that Jones possessed a firearm. This claim
has three parts. We address each in turn but first note that at trial the State argued
that the evidence showed that Jones, not White, wielded the gun used to shoot
Taylor, and that Jones removed both that gun and Taylor’s gun from the scene.

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No. 2018AP1650-CR

¶32 Jones first argues that trial counsel was ineffective by failing to
“aggressively present[] or argue[]” that the State lacked direct evidence to support
its theory. We disagree and conclude that Jones cannot establish deficient
performance on this basis because the record conclusively shows that counsel
reasonably challenged the lack of direct evidence. Counsel pointed out this
potential weakness in the State’s case during opening statements, cross-
examination of multiple witnesses, and closing arguments.

¶33 Jones next argues that trial counsel failed to take advantage of
ballistics evidence relating to how and where Jones was shot. Jones alleged in his
postconviction motion that counsel ineffectively failed to argue to the jury that this
evidence “likely eliminated” Jones as a shooter. However, Jones did not allege
facts explaining why this evidence likely eliminated him as a shooter. Thus, Jones
has failed to sufficiently allege deficient performance or prejudice as to the
ballistics evidence.

¶34 Third and finally, Jones faults trial counsel for failing to present
evidence or argue that Q.S. removed the guns from the scene. As to this
argument, we conclude that, regardless whether counsel performed deficiently,
Jones fails to sufficiently allege prejudice. Jones’s postconviction motion lacks
specific allegations as to how counsel might have plausibly shown that Q.S.
removed the guns. Rather, as with Jones’s claim that counsel was ineffective in

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No. 2018AP1650-CR

cross-examining Q.S., Jones merely speculates as to what further questioning
might have accomplished.2

B. Sufficiency of the Evidence

¶35 We turn to Jones’s argument that the evidence was insufficient to
support conviction on the felon in possession of a firearm charge. The elements of
this offense are: (1) that the defendant has been convicted of a felony, and (2) that
the defendant possessed a firearm. State v. Black, 2001 WI 31, ¶18, 242 Wis. 2d
126, 624 N.W.2d 363. Jones challenges the sufficiency of the evidence only as to
the possession element. We conclude that the evidence was sufficient.

¶36 “[I]n reviewing the sufficiency of the evidence to support a
conviction, an appellate court may not substitute its judgment for that of the trier
of fact unless the evidence, viewed most favorably to the state and the conviction,
is so lacking in probative value and force that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153
Wis. 2d 493, 507, 451 N.W.2d 752 (1990). “If any possibility exists that the trier
of fact could have drawn the appropriate inferences from the evidence adduced at
trial to find the requisite guilt, an appellate court may not overturn a verdict even if
it believes that the trier of fact should not have found guilt based on the evidence
before it.” Id.

2
Jones’s postconviction motion contains similarly speculative allegations regarding
counsel’s investigation of an alternative explanation for how the guns might have been removed
from the scene. Jones alleged that counsel failed to investigate a witness who claimed to have
seen a number of men around a car parked at the rear of Taylor’s home “earlier that day”; that
counsel did not attempt to locate this witness or determine whether the time period when the car
was there correlated with the shooting; and that the men around the car could have been involved
in helping Q.S. remove guns from the scene. Because these allegations merely speculate that
further investigation might have produced exculpatory evidence, we address them no further.

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No. 2018AP1650-CR

¶37 Applying these standards here, we conclude that the jury could
reasonably infer that Jones possessed a firearm. First, a police detective testified
that White was unlikely to have shot Taylor because the gloves White was
wearing were so thick that he could not have fit his finger into the trigger guard of
a gun. Second, as already discussed, there was the evidence showing that two
guns were used in the shooting and that the police recovered no guns from the
scene, meaning that someone who left the scene—most logically Jones—must
have removed them. Third, the eyewitness who saw Jones running out of Taylor’s
residence testified that Jones was “holding something at his waist” that the
eyewitness could not identify.

¶38 Jones argues that the evidence was insufficient because there was no
direct evidence of possession. Direct evidence was not necessary. “It is well
established that a finding of guilt may rest upon evidence that is entirely
circumstantial.” Id. at 501.

By the Court.—Judgment and orders affirmed.

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

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