State v. Edward Herman McKay

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 22, 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. 2021AP2166-CR Cir. Ct. No. 2018CF4936

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EDWARD HERMAN MCKAY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: GLENN H. YAMAHIRO, 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. 2021AP2166-CR

¶1 PER CURIAM. Edward Herman McKay appeals from the
judgment, entered upon a jury’s verdict, for one count of theft from a person. He
argues that the circuit court erred when it denied his motion for mistrial. McKay
also appeals the circuit court’s decision to deny his postconviction motion without
a hearing based on his allegation that his trial counsel was ineffective. Finally, he
argues that he should be granted a new trial in the interest of justice. We reject his
arguments and we affirm.

BACKGROUND

¶2 This case arises out of J.S.’s report to the police that, while standing
in his front yard, a man approached him and stole two necklaces from him on
June 8, 2018. In the course of investigating a different theft, the police developed
McKay as a suspect. J.S. identified McKay in a photo identification array. The
police further obtained surveillance video footage of the theft from a neighbor’s
video camera.

¶3 Although McKay was charged with a second theft and that charge
was scheduled—but not officially joined—for the same trial, on the morning of
the scheduled trial on March 9, 2020, the second theft was dismissed and the trial
proceeded on only the theft from J.S. Before voir dire, two conversations relevant
to this appeal occurred. First, McKay argued to the circuit court that the photo
array was “highly suggestive.” He asserted that the police had “a photo array
where [he] was the only light-skinned guy on there.” When the court asked why
McKay was only raising this issue now, McKay stated, “I have been telling [trial
counsel] this for the longest.” Trial counsel stated that he planned to challenge the
identification at trial and the circuit court ascertained that it was trial counsel’s

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“professional decision” that a motion to suppress or exclude the identification
lacked merit.

¶4 The second issue was the dismissed second case. Trial counsel
confirmed with the court that the “officers will be instructed only to testify to the
fact that Mr. McKay was developed as a suspect in this offense occurring in June
of 2018 and he was developed at a later point in time.” With the prosecutor’s
assent, the circuit court stated: “We don’t want any references to the other case.”
The prosecutor affirmed, “I will instruct my officers to not reference the case that
was dismissed this morning.”

¶5 The case proceeded to trial; the State called the police officer who
responded to J.S.’s theft complaint on June 8, 2018. During the officer’s
testimony, the neighbor’s surveillance video camera footage was played for the
jury. The officer testified that in one segment, “the suspect in this incident
reached over the fence—the victim’s fence, he grabbed the victim’s chest, and
then he ran away.”

¶6 J.S. testified that on June 8, 2018, he was standing in his front yard
waiting for a friend when a man passed by his yard and they engaged in a brief
conversation. The man told J.S. he could not hear him, so J.S. approached, the
man asked about a dog and about cigarettes. When J.S. denied having cigarettes,
the man moved his own sweatshirt and “jumped to grab [J.S.’s] jewelry and he
ran.” J.S. testified that the man stole two pendants and two gold chains that he had
for a long time.

¶7 J.S. testified that he provided a physical description of the man to the
police: he was bald, he had darker skin, and he had a beard. In August 2018, two
police officers came to J.S.’s house and showed him multiple photos of possible

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suspects—J.S. identified McKay as the man who took his property. He identified
the suspect based on his eyes. He picked a photo and testified that the officer
“congratulated” him because that person was the one the police had apprehended.

¶8 During cross-examination, J.S. was asked if he talked about the
thief’s request for a cigarette when he was doing the photo array with the police in
August 2018. J.S. stated, “Yes. Because he told me that the person that they had
caught had asked something about cigarettes.” After a sidebar with the court, the
court ordered J.S.’s last answer stricken from the record.

¶9 On the second day of trial, McKay requested to represent himself for
the remainder of the trial. The court allowed this but retained trial counsel on
standby. McKay continued the cross-examination of J.S.

¶10 The State next called an officer who administered the photo
identification array to J.S. The officer testified about the development of a photo
array, explaining that the booking database provides photos of people similar to
the suspect and then five photos plus the suspect’s photo are placed in separate
folders for the witness to review. The officer explained the steps taken to ensure
that the person administering the identification array does not know which folder
contains the suspect’s photo. The officer testified that J.S. identified a photo of
McKay as the “subject that robbed” him.

¶11 During cross-examination, McKay asked the officer about the
process by which the booking database provided photos based on the demographic
criteria the officer searched; the officer testified that he manually chose the photos
from the photos suggested by the database. McKay then asked the officer the
following:

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No. 2021AP2166-CR

[McKAY:] I got another question I want to ask
you. I want to ask you about the initial contact with [J.S.]
What description did he provide of the perpetrator?

[THE OFFICER:] It was conveyed to me, by
[another officer], that there were three crimes matching the
general description in motive that had a similar suspect in
age, height, weight –

[McKAY:] I object to that.

The court held a sidebar with counsel and then sustained McKay’s objection and
told the jury to disregard the last answer. Finally, the officer denied that he
congratulated J.S. at the end of the identification process.

¶12 Out of the presence of the jury, McKay moved for a mistrial, arguing
the officer’s statement was prejudicial. The prosecutor explained that she thought
the officer was confused by the cross-examination question, that it was a brief
mention of three crimes, and the testimony during the cross-examination was “all
around unclear.” McKay argued that the officer violated the court’s order and that
the jury would not be able to forget or ignore the reference to him committing
other crimes.

¶13 After a brief recess during which the court considered the testimony
in the transcript, the circuit court denied McKay’s motion for mistrial. The court
reviewed that the officer’s “testimony was that there were three crimes matching
the general description in motive that had a similar suspect in age, height, and
weight” and the court had ordered that “the other case, an incident connected to
that, not be referenced in any way.” The court stated that while it would have
“preferred that this language had not been included” in the testimony, the officer
did not say that McKay was “suspect in three other cases.” In fact, the “general
description regarding age, height, and weight … could match hundreds, if not
thousands, of individuals in this community.” The court further considered that it

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No. 2021AP2166-CR

ordered the jury to disregard the answer. The court concluded that its order had
not been “violated with respect to referencing the other case that has now been
dismissed.”

¶14 The trial then proceeded to the defense case, with McKay testifying
that he was innocent of the charges, that he had never been at that location, and
that he did not match the description of the suspect.

¶15 At the jury instruction conference, the court discussed with McKay
whether a curative instruction about the officer’s reference to the other cases could
risk drawing attention to the issue. However, during the closing jury instructions,
the court did address the issue of stricken testimony as follows:

Disregard entirely any question the court did not
allow to be answered. Do not guess at what the witness’s
answer might have been. If the question itself suggested
certain information might be true, ignore the suggestion
and do not consider it as evidence.

During the trial, the court has ordered certain
testimony to be stricken. Disregard all stricken testimony.

¶16 The jury returned a guilty verdict on the charge of theft from person.
At the sentencing hearing, the circuit court imposed a sixty month sentence,
evenly bifurcated between initial confinement and extended supervision.

¶17 McKay moved for postconviction relief, arguing that trial counsel
had provided ineffective assistance for failing to move to suppress J.S.’s
identification of McKay in the police photo array. The circuit court denied this
motion without a hearing. This appeal follows.

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No. 2021AP2166-CR

DISCUSSION

¶18 McKay makes three arguments on appeal. First, he contends that the
circuit court erred in denying his motion for mistrial. Second, he argues that his
postconviction motion sufficiently alleged ineffective assistance of counsel and he
is entitled to an evidentiary hearing. Third, he asserts that a new trial is warranted
in the interest of justice because the true controversy was not tried.

I. Mistrial

¶19 McKay argues that the testimony suggesting he committed other
crimes merited a mistrial and the circuit court erroneously exercised its discretion
by denying his motion. “When faced with a motion for mistrial, ‘the circuit court
must decide, in light of the entire facts and circumstances, whether ... the claimed
error is sufficiently prejudicial to warrant a mistrial.’” State v. Debrow, 2023 WI
54, ¶15, 408 Wis. 2d 178, 992 N.W.2d 114 (quoting State v. Ford, 2007 WI 138,
¶29, 306 Wis. 2d 1, 742 N.W.2d 61). “We review a circuit court’s decision to
grant or deny a motion for mistrial for an erroneous exercise of discretion.”
Debrow, 408 Wis. 2d 178, ¶15. “An erroneous exercise of discretion may arise
from an error in law or from the failure of the circuit court to base its decisions on
the facts in the record.” State v. Raye, 2005 WI 68, ¶16, 281 Wis. 2d 339, 697
N.W.2d 407.

¶20 McKay contends that J.S.’s testimony referencing another “person
that [the police] caught” and the officer’s testimony that there were “three crimes
matching the general description” prejudicially introduced other-acts evidence that
suggested a propensity for crime. Generally, Wisconsin law forbids “evidence of
other crimes, wrongs, or acts … to prove the character of a person in order to show
that the person acted in conformity therewith.” WIS. STAT. § 904.04(2)(a) (2021-

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No. 2021AP2166-CR

22).1 Here, the circuit court directly instructed, and the State agreed, that there
would be no references to other acts alleged to have been committed by McKay.
Although we acknowledge McKay’s perspective that this testimony constituted
other-acts evidence, we agree with the circuit court’s assessment that the
references were not specific or detailed enough to clearly suggest McKay
committed other crimes. We note that the jury remained unaware of the second,
dismissed charge.

¶21 We conclude that the circuit court did not erroneously exercise its
discretion when it determined, in light of the facts and circumstances of the case,
that the officer’s testimony about three other crimes was not so prejudicial as to
warrant a mistrial. See Debrow, 408 Wis. 2d 178, ¶16. The circuit court
demonstrated the appropriate process of reasoning when it denied the motion for
mistrial. It considered arguments and counterarguments from both the State and
McKay, who was representing himself at this stage of trial. It considered
McKay’s concern that merely striking the testimony would not “take it out of their
head[s].” But after reviewing the facts, the court noted that the officer did not
testify that McKay was a “suspect in three other cases.” While the court
concluded that a more specific description might have weighed more in favor of
mistrial, here the match was only to a “general description regarding age, height,
and weight,” which “could match hundreds, if not thousands, of individuals in this
community.”

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP2166-CR

¶22 In addition to striking the officer’s testimony, the circuit court
instructed the jury not to weigh stricken testimony or to speculate about it, in the
final instructions prior to deliberations. When the circuit court “gives the jury a
curative instruction, this court may conclude that such instruction erased any
possible prejudice, unless the record supports the conclusion that the jury
disregarded the [circuit] court’s admonition” about stricken testimony and
speculation. See State v. Sigarroa, 2004 WI App 16, ¶24, 269 Wis. 2d 234, 674
N.W.2d 894.

¶23 McKay argues that the instructions did not address propensity and
other-acts evidence, and that the officer’s testimony on top of J.S.’s remark about
another crime means that the instructions offered to the jury were not enough to
overcome the prejudicial effect of the officer’s testimony. The record does not
reflect that McKay requested an other-acts evidence jury instruction, and the
failure to object at the jury instruction conference forfeits that issue before this
court. See WIS. STAT. § 805.13(3) (“Failure to object at the conference constitutes
a waiver of any error in the proposed instructions or verdict.”).2 Further, “[j]urors
are presumed to have followed jury instructions, State v. LaCount, 2008 WI 59,
¶23, 310 Wis. 2d 85, 750 N.W.2d 780, and the record does not support that the
jury disregarded the court’s instructions.

¶24 Ultimately, we conclude that the circuit court demonstrated
appropriate reasoning based on the facts and circumstances of the case when it

2
“[T]he court of appeals has no power to reach an unobjected-to jury instruction because
the court of appeals lacks a discretionary power of review.” State v. Trammell, 2019 WI 59, ¶25,
387 Wis. 2d 156, 928 N.W.2d 564,.

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No. 2021AP2166-CR

denied McKay’s motion for mistrial. The court offered the appropriate curative
instructions to the jury. We reject McKay’s request for a new trial.

II. Ineffective assistance of counsel

¶25 McKay’s second argument is that trial counsel was ineffective for
failing to move to suppress the identification array and J.S.’s identification of him.
A pretrial photographic identification violates a defendant’s due process rights
when it is “impermissibly suggestive and not otherwise reliable.” See State v.
Mosley, 102 Wis. 2d 636, 649-50, 307 N.W.2d 200 (1981). To prove ineffective
assistance of counsel, a defendant must show both that counsel’s performance was
deficient and that the defendant was prejudiced by counsel’s performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶26 Whether an out-of-court identification violates due process is a
question of constitutional fact. See State v. Roberson, 2019 WI 102, ¶66, 389
Wis. 2d 190, 935 N.W.2d 813. A question of constitutional fact is a mixed
question of fact and law, which requires us to engage in a two-part inquiry: we
will uphold the trial court’s findings of fact unless they are clearly erroneous, but
we independently review whether those evidentiary facts satisfy the constitutional
standard. State v. McMorris, 213 Wis. 2d 156, 165, 570 N.W.2d 384 (1997).
Similarly, our review of an “ineffective assistance of counsel claim is a mixed
question of law and fact.” State v. Dalton, 2018 WI 85, ¶33, 383 Wis. 2d 147, 914
N.W.2d 120.

¶27 At the outset, we address McKay’s assertion that his postconviction
motion alleged sufficient material facts to show that counsel’s representation was

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No. 2021AP2166-CR

ineffective; therefore, he is entitled to a Machner3 hearing to determine the issue.
See State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d 458, 983 N.W.2d 608. Our
standard to review a claim that the circuit court erred when it denied a
postconviction motion without a hearing is a two step-process. “First, we assess
whether the motion on its face alleges sufficient material and non-conclusory facts
that, if true, would entitle the defendant to relief.” Id. “Second, we determine
whether the record conclusively demonstrates that the defendant is not entitled to
relief.” Id.

¶28 For McKay’s claim that he is entitled to a Machner hearing to
succeed, he would need to show that he alleged sufficient material facts that the
photo array identification was impermissibly suggestive; therefore, his attorney
was deficient for failing to move to suppress the identification and that this
deficient performance prejudiced his defense. Accordingly, our first inquiry is
whether McKay can meet his burden to show that the identification was
impermissibly suggestive. See Mosley, 102 Wis. 2d at 652 (“The first inquiry is
whether the out-of-court photographic identification was impermissibly
suggestive, as to which the defendant has the burden. If this burden is not met, no
further inquiry is necessary.”).

¶29 McKay contends that the photo identification array was
impermissibly suggestive because his skin tone was lighter than the other men
presented and the way the photo was taken made his face “shine” more than the
other men. In its written decision denying McKay’s postconviction motion, the
circuit court stated that it “reviewed the photo array lineup[.]” The court noted

3
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP2166-CR

that all six photos “depict[ed] African American males with similar facial hair.
All of the photos depict males who are bald or nearly bald.” The court further
noted that while McKay’s “face appears brighter” than the other men in the
photos, his face did “not inordinately appear so … as to suggest him as the
perpetrator.” The court concluded that all of the men’s faces had “some amount of
‘shine’ on their faces, presumably due to factors relating to picture development.”
We conclude that the circuit court’s fact finding is not clearly erroneous. Our
review of the record supports that McKay did not stand out improperly.
Moreover, J.S. testified that he recognized McKay by his eyes, not the brightness
of his face.

¶30 We further conclude that even if we had concerns about
impermissible suggestiveness of the photo, the identification itself was sufficiently
reliable. When we evaluate the reliability of such an identification, we consider
factors including:

[T]he opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal,
the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and
the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972). The State argues that there is
sufficient evidence in the record to conclude that J.S.’s identification of McKay
was reliable. First, J.S. had ample opportunity to witness the thief before the
crime, while they were conversing at a short distance apart for several minutes
before anything happened. Second, J.S. was standing close to the thief, within
several feet and J.S. testified he could clearly see the thief’s face. Third, J.S.’s
degree of attention allowed him to provide a fairly detailed description of the

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No. 2021AP2166-CR

suspect. Fourth, J.S. was confident in his identification with police, stating that
was the person as soon as he opened the folder.

¶31 Additionally, McKay asserted that the officer who conducted the
photo array identification with J.S. did not follow model practices and procedures
for eyewitness identification. As the circuit court concluded, the model rules do
not have the force of law and there is no evidence that the officer’s conduct during
the identification was suggestive or influenced the victim’s identification.
Although the record reflects that the officer denied congratulating J.S. about the
identification, J.S. did testify about the officer congratulating him. However, even
if we presume that the congratulations occurred, J.S. testified that the
congratulations happened after the identification was complete, not during his
review of the photo array. We again do not find the court’s findings clearly
erroneous. Our independent review does not support that the facts of the pretrial
identification violated McKay’s due process rights. See Mosley, 102 Wis. 2d at
652.

¶32 Because we conclude that the pretrial out-of-court identification was
not impermissibly suggestive, we conclude that a motion to suppress would have
been meritless. As our supreme court stated, “[c]ounsel does not perform
deficiently by failing to bring a meritless motion.” State v. Sanders, 2018 WI 51,
¶29, 381 Wis. 2d 522, 912 N.W.2d 16. Accordingly, we conclude that trial
counsel’s performance was not deficient for failing to file a motion to suppress the
identification. Further, because McKay has failed to make a showing on the
deficiency test, we decline to address the issue of prejudice. Id., ¶30. Therefore,
McKay’s ineffective assistance of counsel claim fails.

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No. 2021AP2166-CR

¶33 Moreover, because the record conclusively demonstrates that
McKay’s ineffective assistance of counsel claim fails, the circuit court acted
within its discretion to deny his motion for postconviction relief without a hearing.
See Jackson, 405 Wis. 2d 458, ¶8.

III. New trial in the interest of justice

¶34 McKay’s final argument is that he is entitled to a new trial in the
interest of justice. He asserts that the real controversy has not been tried because
of the erroneous introduction of other-acts evidence, the erroneous admission of
the pretrial photo identification by J.S., and the erroneous admission of evidence
that McKay possessed a firearm during the theft.

¶35 This court may order a new trial pursuant to WIS. STAT. § 752.35
when the real controversy has not been fully tried or when it is probable that
justice has miscarried. “The power to grant a new trial in the interest of justice is
to be exercised ‘infrequently and judiciously.’” State v. Avery, 2013 WI 13, ¶38,
345 Wis. 2d 407, 826 N.W.2d 60 (citation omitted).

¶36 We have rejected McKay’s first two arguments above and we
decline to address them again. As for McKay’s third argument, we return to the
record. When trial counsel cross-examined J.S., the following exchange
happened:

[TRIAL COUNSEL:] Did you also tell the officers
on June 8th that when you told the person that you did not
have a cigarette, that that person then pulled out a gun and
pointed it at you?

[J.S.:] No. He never pointed it at me. He never
pulled it out. He just went like this and then he told me not
to move, and that is when he jumped and he grabbed my
chains.

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No. 2021AP2166-CR

¶37 On appeal, McKay argues that trial counsel “opened the door” to
harmful testimony by J.S. by asking this question.4 The record reflects that the
initial criminal complaint included J.S.’s report that the thief “pulled out a firearm
with his right hand and grabbed [J.S.’s] necklace with his left hand. The
defendant held the gun to [J.S.’s] head while pulling the necklace from his neck.”
At trial, the State played the neighbor’s surveillance video camera footage, also
referenced in the complaint, which did not clearly show that McKay had a
weapon. Further, the original charge of armed robbery was changed to theft from
person prior to trial.

¶38 McKay asserts that discussion of the firearm was not relevant to the
charge and was unfairly prejudicial. In its postconviction decision, the circuit
court concluded that:

While the references to a firearm were not necessary to
prove the elements of the offense, the court is not
persuaded that they so clouded the central issue of
identification that it may be fairly said that the real
controversy was not fully tried or that the guilty verdict is
the result of a miscarriage of justice.

¶39 We agree with the circuit court that the references to a firearm did
not prevent the real controversy from being fully tried or result in a miscarriage of
justice. This court’s power of discretionary reversal is limited to “exceptional

4
The record reflects that trial counsel asked these questions about firearms in cross
examination, during a series of questions that attempted to show inconsistencies in J.S.’s account
of the theft and discredit his testimony. The State suggests that there are strategic reasons for
counsel’s line of questioning. McKay responds that any consideration of a strategic reason for
trial counsel’s actions would be relevant only in an ineffective assistance of counsel claim, but is
not relevant to the interest of justice claim. We are mindful of our supreme court’s instruction to
this court not to use the discretionary power of reversal to “shortcut [established] procedures …
when there is no apparent reason for doing so[.]” State v. Kucharski, 2015 WI 64, ¶43, 363
Wis. 2d 658, 866 N.W.2d 697 (citation omitted).

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No. 2021AP2166-CR

cases.” State v. McKellips, 2016 WI 51, ¶52, 369 Wis. 2d 437, 881 N.W.2d 258.
To consider whether a case is one of the few requiring discretionary reversal, this
court “must engage in ‘an analysis setting forth the reasons’ that the case may be
characterized as exceptional.” Id. (citation omitted). In this case, we are unable to
state why this case is exceptional and we conclude that the controversy was fully
tried. Therefore, we reject McKay’s final claim.

CONCLUSION

¶40 For the reasons stated above, we conclude that the circuit court acted
within its discretion when it denied McKay’s motion for mistrial and denied
McKay’s postconviction motion alleging ineffective assistance of counsel without
a hearing. Further, we conclude that the real controversy was fully tried and
McKay is not entitled to a new trial in the interest of justice.

By the Court.—Judgment and order affirmed.

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

16