State v. Emanuel Terrell Harper

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.
October 24, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP641-CR Cir. Ct. No. 2017CF3410

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EMANUEL TERRELL HARPER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DANIELLE L. SHELTON, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Dugan, 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).
No. 2022AP641-CR

¶1 PER CURIAM. Emanuel Harper appeals his convictions for one
count of felon in possession of a firearm and two counts of felony bail jumping.
On appeal, Harper contends that the State failed to present sufficient evidence
during his jury trial to corroborate his confession to possessing a firearm. For the
reasons discussed below, we reject Harper’s argument and affirm.

BACKGROUND

¶2 Harper was initially charged with first-degree reckless homicide,
with use of a dangerous weapon; possession of a firearm by a felon; and two
counts of felony bail jumping. Later, the first-degree reckless homicide charge
was amended to first-degree intentional homicide, with use of a dangerous
weapon.

¶3 According to the criminal complaint, on June 19, 2017, a man was
shot in a gas station parking lot at 6325 North 76th Street in Milwaukee, and
subsequently died. In the gas station lot, police found a tan baseball cap and
several spent .40 caliber casings, which were determined to all come from the
same gun. Police also observed two dried blood droplets on the surface of the
parking lot. DNA analysis showed a link between the genetic profile of the blood
droplets and Harper’s DNA. DNA analysis also showed that the genetic profile of
the major male contributor on the baseball cap matched the genetic profile of the
blood droplets.

¶4 On December 14, 2017, at a status conference, the State indicated
that it was unable to locate a material witness for the homicide charge. As a result,
on Harper’s motion, the trial court dismissed the homicide charge without
prejudice.

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No. 2022AP641-CR

¶5 Subsequently, the State sought to join this case with two other cases,
Milwaukee County Circuit Court Case Nos. 2017CF1090 and 2017CF1412. At a
hearing on the motion, the trial court expressed concern that joining this case with
the other two cases would unfairly prejudice Harper. The State then withdrew the
motion in regards to this case.

¶6 Two months later, the State renewed its motion to join all three
cases. During its argument, the State indicated that it would not present evidence
during trial that a person was shot. Based on this representation, Harper agreed to
joinder. The State then clarified that it still intended “to present that a casing was
recovered … [s]o there will be evidence that a firearm was shot, however … any
injuries to a victim, that I am happy to side step.” Under this circumstance, the
trial court granted the State’s motion and joined all three cases for trial. The court
stated that “any reference to the injuries, the death, the shooting of a person or
anything of that nature is excluded from the trial and prohibited to be introduced.”

¶7 On February 1, 2021, Harper proceeded to trial solely on this case.1
Harper represented himself with the assistance of standby counsel. The parties
stipulated that on June 19, 2017, Harper was convicted of a felony and was not
permitted to possess a firearm. In addition, the parties stipulated that on June 19,
2017, Harper was out-of-custody and subject to conditions of release on bond on
two separate felony cases, that the condition of release on bond for each case was
that Harper not possess any firearms, and Harper knew as a condition of his
release on the bonds that he was not to possess any firearms.

1
Prior to trial, Milwaukee County Circuit Court Case No. 2017CF1090 was severed.
Additionally, on the morning of trial, Milwaukee County Circuit Court Case No. 2017CF1412
was dismissed without prejudice due to a missing State witness.

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No. 2022AP641-CR

¶8 During the trial, the State presented testimony from several
witnesses. Lieutenant Keith Kopcha testified that he conducted a Mirandized2
interview of Harper. During the interview, Harper told Lieutenant Kopcha that he
was familiar with the North 76th Street gas station and frequented it on a regular
basis—sometimes up to five times in a single day.

¶9 In particular, on June 19, 2017, Harper was at the gas station twice.
On one occasion, at around 5:00 p.m., Harper said that “[i]nside the gas station he
observed an unknown subject of [sic] a firearm. He … observed a magazine
sticking out of the firearm and the guy had it in his possession on his person[.]”
Harper “grabbed the gun and took it from the guy and then that individual that he
took the gun from had run out of the store and got into a Monte Carlo and left.”
Harper described the gun as “a large black semiautomatic pistol” and “speculated
it was a nine millimeter, but he didn’t know for sure.”

¶10 Harper said he returned to the gas station a second time that day at
approximately 10:00 p.m. to 11:00 p.m. Harper confirmed that at that time he was
still in possession of the firearm that he had taken earlier. After about an hour,
Harper left the gas station. Later that evening, as Harper was driving to Chicago,
he “dismantled the gun and threw it out the window.” Harper also said he had
been wearing a tan baseball cap on the night of the incident.

¶11 Lieutenant Kopcha testified that during the interview, Harper denied
that he was under the influence of any drugs or alcohol. According to Lieutenant
Kopcha, all of Harper’s answers “were appropriate” and “he did not appear to be

2
Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2022AP641-CR

in any type [of] distress or anything of that nature during the interview.”
Lieutenant Kopcha further testified that to his knowledge, no witnesses confirmed
or reported that a firearm had been stolen.

¶12 The State also called Detective Michael Fedel. Detective Fedel
testified that on June 19, 2017, he responded to the gas station to conduct a scene
investigation. In the gas station parking lot, Detective Fedel found a tan baseball
cap and several spent shell casings. The cap and shell casings were later sent to
the crime lab for testing.

¶13 Detective Fedel additionally told the jury that he reviewed the
surveillance footage from the gas station.3 The footage showed Harper entering
the store, buying a bottle of soda, paying for his purchase, and then walking out.
Detective Fedel “[c]ouldn’t] say for sure if [he] saw” anyone inside the store on
the surveillance video possessing a firearm. He also testified that he never saw
Harper possessing a firearm, nor was he aware of any witnesses who saw Harper
with a firearm.

¶14 In addition, the State called two laboratory analysts. Heather
Williams, a firearm and tool mark examiner with the Wisconsin State Crime
Laboratory, testified that she examined seven fired shell casings. Williams stated
that the casings were .40 caliber, and all had been fired from the same firearm.

¶15 The second analyst the State called was Sharon Polakowski, a
forensic scientist who works in the DNA unit of the Wisconsin State Crime
Laboratory. Polakowski testified that she swabbed various parts of the baseball

3
The surveillance footage was not played for the jury or introduced as an exhibit.

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No. 2022AP641-CR

cap that had been found at the scene and developed two DNA profiles.
Polakowski stated that the profiles “were mixtures consistent with two
individuals.” One component came from a “major contributor,” which meant that
“there [was] more DNA from one person than the other” and was “suitable to be
used for inclusionary purposes.” The other was a “minor component.”
Polakowski opined that Harper was the source of the major component of the
DNA found on the baseball cap.

¶16 At the close of the State’s case, Harper moved for a judgment of
acquittal, arguing that there was insufficient evidence that he possessed a firearm.
The State responded by arguing that Harper’s confession alone was enough for the
State to meet its burden. The State further argued that the stipulations, Harper’s
DNA on the baseball cap,4 and the shell casings corroborated Harper’s confession.
In regards to the shell casings, the State asserted that the shell casings:

don’t stand for the proposition that the defendant was
directly responsible for putting those casings there, or firing
a gun. There wasn’t any evidence along those lines.

You know, it just so happens that we all know
[Harper] did that, because that was, also, part of the
confession, but we kept that out of [the] case, in accordance
with our agreement. But the casings are probative, because
they tend to show that a firearm was, in fact, there on the
date in question.

¶17 The trial court denied Harper’s motion and concluded that there was
sufficient evidence to allow the case to go to the jury for a determination of guilt
or innocence.

4
We note that the State also argued that Detective Fedel testified that he observed
Harper on the surveillance video wearing the baseball cap. Detective Fedel’s testimony,
however, does not indicate that he saw Harper on the surveillance video wearing the baseball cap.

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No. 2022AP641-CR

¶18 In closing argument, the State argued to the jury that the “chief piece
of evidence” was Harper’s confession to the crime. The State also argued that
Harper’s confession was corroborated in three ways: (1) Detective Fedel testified
that he saw Harper entering the gas station and buying a soda;5 (2) a baseball cap
was discovered at the scene and linked by DNA evidence to Harper; and
(3) several .40 caliber shell casings from the same firearm were recovered at the
scene. According to the State, it was not arguing that there was evidence that
Harper fired a gun, but that the “rational inference” from the casings was that there
was a gun at the scene.

¶19 The jury found Harper guilty. The trial court imposed a total
sentence of four years of initial confinement and six years of extended
supervision.6 This appeal follows.

DISCUSSION

¶20 On appeal, Harper contends that his convictions should be dismissed
because the State failed to sufficiently corroborate his confession to possessing a
firearm.7

5
In its closing argument, the State again indicated that Detective Fedel testified that he
observed Harper on the surveillance video wearing the baseball cap. As stated above, this
testimony is not reflected in the transcript.
6
We note that the judgment of conviction in this case was subsequently amended with
respect to sentence credit. Harper does not challenge sentence credit on appeal and we do not
address it further.
7
According to Harper, because there was insufficient evidence that he possessed a
firearm, the felon in possession conviction should be dismissed. Harper also contends that his
two convictions for bail jumping must be vacated because they were premised on the felon in
possession of a firearm conviction.

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No. 2022AP641-CR

¶21 “A conviction will not stand on the basis of a defendant’s confession
alone.” See State v. Bannister, 2007 WI 86, ¶23, 302 Wis. 2d 158, 734 N.W.2d
892. Rather, “there must be some corroboration of the confession … to produce a
confidence in the truth of the confession.” Id., ¶26 (citation omitted). To satisfy
the corroboration rule, the State must “present at least one significant fact [in
addition to the confession] that gives confidence that the crime the defendant has
been convicted of actually did occur.” Id., ¶31. “A significant fact need not either
independently establish the specific elements of the crime or independently link
the defendant to the crime.” Id.

¶22 A claim that a confession was not corroborated is a challenge to the
sufficiency of the evidence presented at trial. See State v. Thomas, 2023 WI 9, ¶9,
405 Wis. 2d 654, 985 N.W.2d 87.8 Whether the State has presented sufficient
evidence to support a verdict is a question of law subject to our independent
review. Id. We will affirm a verdict “unless the evidence, viewed most favorably
to the verdict, is so lacking in probative value and force that no reasonable fact-
finder could have found guilt beyond a reasonable doubt.” State v. Routon, 2007
WI App 178, ¶17, 304 Wis. 2d 480, 736 N.W.2d 530.

¶23 On appeal, the State points to four pieces of evidence that, in its
view, corroborate Harper’s confession: (1) Detective Fedel’s testimony that there
was a surveillance video showing that Harper was in the convenience store on the
night in question; (2) the recovery of the tan baseball cap from the scene; (3) the

8
We note that State v. Thomas, 2023 WI 9, 405 Wis. 2d 654, 985 N.W.2d 87, was
pending in our supreme court during briefing in this case. Harper in his brief requested the
opportunity to file a letter brief if a decision was released while his appeal was pending. Given
the fact-specific nature of Thomas and this case, we have determined that additional briefing is
unnecessary.

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No. 2022AP641-CR

presence of Harper’s DNA on the cap; and (4) the evidence that shell casings were
found in the parking lot.

¶24 Harper argues that the shell casings did not corroborate his
confession. Harper points to the fact that the jury was told that Harper possessed a
gun, not fired one. Harper also points to the fact that he told the police that he
possessed a nine millimeter gun and the casings found at the scene were .40
caliber. In addition, Harper asserts that the State told the jury the casings were not
evidence that he fired a gun.

¶25 Even if we assume that the shell casings do not corroborate Harper’s
confession, we conclude that the State has offered “at least one significant fact that
gives confidence that the crime the defendant has been convicted of actually did
occur.” Bannister, 302 Wis. 2d 158, ¶31. Here, the State presented evidence that
there was a surveillance video showing that Harper was in the convenience store
on the night in question, there was a tan baseball cap recovered from the scene,
and the baseball cap had Harper’s DNA. This evidence corroborated that Harper
was at the place where he said he possessed a firearm and the date he possessed a
firearm. This evidence “permits confidence” that Harper’s possession of a firearm
“actually did occur.” Id., ¶¶30, 31. Corroborating evidence “need not either
independently establish the specific elements of the crime or independently link
the defendant to the crime.” Id., ¶31.

¶26 Therefore, we conclude that the State satisfied its burden to present
“some evidence” that Harper actually possessed a firearm as he confessed, and we
affirm. See id., ¶25. Based on the evidence presented, a reasonable jury could
have concluded, beyond a reasonable doubt, that Harper was guilty of felon in

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No. 2022AP641-CR

possession of a firearm and two counts of felony bail jumping. See Routon, 304
Wis. 2d 480, ¶17.

By the Court.—Judgment and order affirmed.

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

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