State v. Dalquavis Ward

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.
March 12, 2025
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. 2024AP14-CR Cir. Ct. No. 2019CF854

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DALQUAVIS WARD,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: TIMOTHY D. BOYLE, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2024AP14-CR

¶1 PER CURIAM. Dalquavis Ward appeals from a judgment of
conviction and an order denying his postconviction motion following a hearing.
Ward argues that he is entitled to a new trial based on trial counsel’s allegedly
ineffective assistance in failing to file a notice of alibi, failing to pursue an alibi
defense, and failing to object to the trial court’s instruction to the jury to disregard
Ward’s alibi testimony and other-acts evidence. Ward further argues that the trial
court deprived him of his constitutional right to present a defense by instructing
the jury to disregard his alibi testimony. We disagree and affirm.

BACKGROUND

¶2 After a five-day trial, a jury found Ward guilty of first-degree
intentional homicide with use of a dangerous weapon, as well as armed robbery
and being a felon in possession of a firearm, both including penalty enhancements
for Ward’s status as a habitual offender. The charges stemmed from an armed
robbery during business hours at Teezers bar that ended with the fatal shooting of
an off-duty Racine police officer, John Hetland, who had engaged with the robber
in an attempt to protect Teezers’ employees and customers. For the homicide,
Ward is serving a life term without the possibility of parole, consecutive to
bifurcated sentences of forty-six years and fourteen years for the robbery and
unlawful firearm possession, respectively.

¶3 At trial, testimony from Teezers’ employees, witnesses, and law
enforcement officers established the following facts surrounding the night of the
robbery. A masked man wearing a black hoodie and a black mask that covered
most of his face entered through a rear door and walked behind the bar. He
walked up to the bar manager, H.F., as she worked at the cash register. He held a
gun in his right hand, pointed it at H.F., and demanded all of the money. As H.F.

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handed over the cash to the robber in his left hand, Officer Hetland, who was
having dinner at Teezers, jumped over the bar and scuffled with the man, enabling
H.F. and other customers to flee to safety. The scuffle ended with a single gunshot
before the robber fled through the kitchen door.

¶4 The scuffle lasted approximately thirteen seconds before the robber
gained separation from Hetland, who had lost his balance. Rather than flee with
the cash in hand, the robber aimed and fired one shot directly into Hetland’s chest
from three feet away, severing his aorta and killing him almost instantly. The
entire episode, from the moment the robber entered the bar to when he shot
Hetland and fled through the bar’s kitchen, was caught on the bar’s high-definition
video camera system and was viewed by investigators at the scene. Other cameras
captured the robber’s moves outside in the time leading up to the robbery and
inside from after the robbery and homicide until the robber fled.

¶5 Ward also testified in his own defense at trial. When Ward’s
attorney asked where Ward was on the day of the robbery, he replied that he was
at his brother Brandon’s house that Brandon shared with his partner Krystal.
Ward explained that after eating barbecue, he “smoked weed and just stayed there
the rest of the night.” Ward denied having been at Teezers on the night in
question, despite the fact that DNA evidence presented at trial placed Ward at the
scene. Specifically, Ward’s DNA profile matched the DNA profile that the robber
left on a doorknob to a “private” Teezers entrance, and matched the DNA profile
that the robber left on Hetland’s face, neck, and shoulder during the thirteen-
second struggle.

¶6 The State objected to Ward’s testimony on grounds that it
constituted alibi evidence and Ward had not provided the requisite notice under

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the notice-of-alibi statute, WIS. STAT. § 971.23(8) (2023–24).1 Ward’s attorney
responded that he had only asked Ward whether he was at Teezers that night and
where he awoke the next morning, but did not ask Ward where he was when the
robbery occurred. The trial court sustained the objection, found that this was alibi
testimony, and after considering jury instructions on the issue from the parties,
instructed the jury to disregard Ward’s testimony that he was at his brother’s home
“during the entire night of June 17, 2019.” Neither Brandon nor Krystal testified
at trial as to Ward’s whereabouts during the time of the Teezers’ incident.

¶7 After sentencing, Ward filed a postconviction motion for a new trial
raising the claims presented here, with the exception that he did not advance the
argument he now makes that the trial court violated his constitutional right to
present a defense by disallowing the alibi testimony.2 The court denied Ward’s
motion after holding a Machner3 hearing. The court found that trial counsel did
not perform deficiently, and that Ward was not prejudiced by either the failure to
notice or the disallowance of his alibi testimony, nor was Ward prejudiced by
counsel’s failure to object to the other-acts testimony. Ward appeals.

¶8 We include additional facts below as necessary to the discussion.

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
2
We address in detail this argument and its status on appeal in the discussion below.
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2024AP14-CR

DISCUSSION

¶9 Ward’s arguments on appeal fall into two main categories—those
related to trial counsel’s and the trial court’s decisions surrounding Ward’s alibi
testimony and those related to the admission of, and trial counsel’s failure to
object to, testimony related to other acts committed by Ward that were similar to
the crimes for which he was on trial.

¶10 To prevail on a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and that he or
she suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687
(1984). A reviewing court need not address both prongs of the analysis if the
defendant makes an insufficient showing on either one. Id. at 697. Our review of
an ineffective assistance of counsel claim is a mixed question of fact and law.
State v. Pitsch, 124 Wis. 2d 628, 633–34, 369 N.W.2d 711 (1985). We will not
disturb the circuit court’s findings of fact unless they are clearly erroneous, but the
ultimate determination of whether counsel’s performance fell below the
constitutional minimum is a question of law we review de novo. Id. at 634.

¶11 To establish ineffective assistance of counsel, Ward must make a
threshold showing that, when considering all the circumstances, his counsel
performed deficiently by providing representation that fell below an objective
standard of reasonableness. See State v. Jenkins, 2014 WI 59, ¶36, 355 Wis. 2d
180, 848 N.W.2d 786. Our review is highly deferential to the reasonableness of
counsel’s performance, and we make every effort to reconstruct the circumstances
and evaluate counsel’s conduct from his or her perspective at the time of the
relevant decision. Id. Ordinarily, a defendant does not prevail unless the
defendant proves that counsel’s performance sunk to the level of professional

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No. 2024AP14-CR

malpractice. State v. Maloney, 2005 WI 74, ¶23 n.11, 281 Wis. 2d 595, 698
N.W.2d 583.

Alibi-related issues

¶12 A defendant who simply claims that he was not present at the scene
of the crime when the crime occurred does not present an alibi defense within the
meaning of the notice-of-alibi statute. See State v. Starr, 60 Wis. 2d 763, 764, 211
N.W.2d 510 (1973). However, a defendant who claims that he was elsewhere, at a
place other than the scene of the crime when the crime occurred, does present such
a defense. See State v. Shaw, 58 Wis. 2d 25, 30–31, 205 N.W.2d 132 (1973),
overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d
752 (1990); see also State v. Harp, 2005 WI App 250, ¶¶15, 22, 288 Wis. 2d 441,
707 N.W.2d 304.

¶13 Here, the parties agree that Ward’s trial testimony that he was at his
brother’s residence the entire night of the armed robbery and homicide at Teezers
constituted an alibi defense. The disagreement is whether Ward’s trial counsel
provided ineffective assistance. Ward argues that he is entitled to a new trial
because his attorney was constitutionally ineffective for failing to notice Ward’s
potential alibi testimony, and counsel’s failure to notice the defense, coupled with
the trial court’s decision to strike Ward’s alibi testimony, deprived Ward of his
constitutional right to present a defense.

¶14 WISCONSIN STAT. § 971.23(8) requires the defense to file a notice of
alibi at least thirty days in advance of trial if it intends to offer any alibi evidence.
Ward asserts that his trial counsel knew well before trial that Ward wanted to
testify that he was at his brother’s house during the Teezers’ incident, so counsel
should have filed the notice even if there were no other witnesses to corroborate

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No. 2024AP14-CR

his alibi testimony. As we now explain, we conclude that the trial court correctly
determined that counsel was not ineffective as it relates to the alibi defense.

¶15 First, reviewing Ward’s trial testimony, we agree with the parties
and are satisfied that he presented an alibi defense within the meaning of the
notice-of-alibi statute. See WIS. STAT. § 971.23(8). The obvious purpose of the
testimony was to persuade the jury that Ward was at his brother’s house when the
armed robbery and homicide occurred, making it impossible for him to have
committed the crime. Because Ward presented an alibi defense, he was required
to provide notice under the notice-of-alibi statute. Because he failed to do so, the
trial court properly struck his testimony. However, although trial counsel did not
file a notice of alibi or attempt to present an alibi defense, we agree with the trial
court’s postconviction finding that counsel’s failure to notice and pursue the alibi
defense did not rise to the level of ineffective assistance.

¶16 The Seventh Circuit Court of Appeals has held that the preclusion of
a defendant’s alibi testimony for failure to give notice under Wisconsin’s
notice-of-alibi statute violated the defendant’s constitutional right to testify on his
own behalf. Alicea v. Gagnon, 675 F.2d 913, 924–25 (7th Cir. 1982). However,
our supreme court later explicitly rejected this holding. In State v. Burroughs,
117 Wis. 2d 293, 305–06, 344 N.W.2d 149 (1984), it explained:

We disagree with that interpretation of Wisconsin’s alibi
statute. The statute does not deny the defendant the right to
testify, but rather, only requires that if he is going to claim
not to have been at the scene of the crime, then he must
notify the state where he was. That is not a denial of a right
to testify; it is only a reasonable requirement needed to
achieve orderly trials and procedures....

[N]either this court nor the United States Supreme Court
has ever held that there cannot be reasonable limitations or
conditions placed on this right. The defendant’s right to
testify is limited to being truthful and relevant and, if in the

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No. 2024AP14-CR

form of an alibi, subject to notice pursuant to [WIS. STAT.
§] 971.23(8).

¶17 We conclude that Ward has failed to establish that trial counsel was
ineffective in failing to file a notice of alibi or in failing to object to the jury
instruction directing the jury to disregard Ward’s alibi testimony. Had counsel
specifically objected on the ground that striking Ward’s alibi testimony and
instructing the jury to disregard it would violate Ward’s rights to testify and to
present a defense, the objection would have failed. “[T]rial counsel cannot be
considered ineffective for failing to raise a meritless claim.” State v. Davis, 2023
WI App 25, ¶25, 407 Wis. 2d 783, 991 N.W.2d 491.

¶18 Moreover, and critical to our decision, is the fact that trial counsel
testified at the postconviction hearing that after having two separate investigators
look into Ward’s potential alibi defense before the trial, counsel determined that
there was no good-faith basis on which he could present Ward’s alibi defense.
Despite Ward’s urging that trial counsel present alibi evidence, counsel reported
that no witnesses could account for Ward’s whereabouts during the time of the
Teezers’ incident.

¶19 With respect to Ward’s complaint that he was prejudiced by trial
counsel’s approach to his potential alibi defense, the trial court found that this
claim was “speculative at best.” The record supports that conclusion. There are
two reasons why Ward’s alibi testimony would not have made a difference to the
outcome of his trial. First, it was extremely weak. Not only was Ward’s
testimony self-serving but, as noted by the court, “there was no corroborating
support for it.”

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No. 2024AP14-CR

¶20 Second, the testimony would have been overshadowed by the strong
evidence of Ward’s guilt. At trial, Ward admitted on direct-examination to being
a “professional robber”, and stated frankly on cross-examination that “I rob
businesses.” Ward also testified to having committed four prior armed robberies
of Racine businesses strikingly similar to this one, and the DNA evidence
recovered at the scene and from Officer Hetland, conclusively proved that Ward
had been present during the robbery and homicide. Ward failed to explain when
he testified how his DNA ended up on the doorknob that the robber grabbed
behind Teezers, or how Ward’s DNA got on Hetland’s face, neck, and shoulder if
Ward was not at the scene. Ward’s decision to testify in the face of the DNA
evidence made matters worse for him. In short, Ward’s uncorroborated assertion
that he was at his brother’s house all night would not have held up even if counsel
had objected to striking it.

¶21 We also reject Ward’s next argument, that the trial court violated his
constitutional right to testify on his own behalf when it struck his testimony based
upon his failure to provide notice under the notice-of-alibi statute.4 Given our
supreme court’s decision in Burroughs, which we are obligated to follow, we
cannot say that the court violated Ward’s constitutional right to testify on his own
behalf when it struck his testimony based upon his failure to provide notice under
the notice-of-alibi statute. The notice-of-alibi statute is a reasonable limitation that
can be placed on a defendant’s constitutional right to testify, and Ward plainly
violated it in this case.

4
The State argues that Ward forfeited the right to raise on appeal the issue that the trial
court violated his constitutional rights in striking the alibi testimony by asserting only ineffective
assistance of counsel as a basis for a new trial in his postconviction motion. Given our
conclusion that this argument fails on its merits, we decline to apply the forfeiture rule here.

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No. 2024AP14-CR

Other-acts testimony

¶22 Ward next argues ineffective assistance of trial counsel based on
counsel’s failure to object to other-acts testimony regarding other similar armed
robberies Ward had committed in the area. The allegedly-objectionable testimony
was elicited during Ward’s cross-examination by the prosecutor.

¶23 A defendant claiming ineffective assistance of counsel for failure to
object to other-acts testimony must establish that trial counsel’s decision not to
object was inconsistent with a reasonable trial strategy, that is, that it was
irrational or based on caprice, to establish counsel’s performance was deficient.
See State v. Breitzman, 2017 WI 100, ¶75, 378 Wis. 2d 431, 904 N.W.2d 93.
(affirming denial of ineffective assistance of counsel claim for failure to object to
other-acts testimony because trial counsel’s actions were based on a reasonable
trial strategy and a jury instruction limited the risk of unfair prejudice). When the
trial court “determines that counsel had a reasonable trial strategy, the strategy is
virtually unassailable in an ineffective assistance of counsel analysis.” Id.
(internal quotation removed).

¶24 Based on our review of the record, we conclude that Ward’s
argument that the decision not to object to other-acts evidence was not strategic is
inconsistent with the findings of the postconviction court, which Ward has not
shown to be clearly erroneous. See Thiel, 264 Wis. 2d 571, ¶21. Trial counsel
provided a reasonable explanation for not objecting to the history of Ward’s
commission of previous, similar armed robberies. The court determined that
“there was little doubt as to [trial counsel’s] strategy and decisions to object or not
to object to certain information.” It further found that “in view of all the evidence,
such decisions were reasonable and were done to actually deflect or not highlight

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No. 2024AP14-CR

any prejudice.” Finally, the court found that “there is no reasonable probability
that additional objections by [trial counsel] would [have made] the outcome of the
trial any different.” We agree with the trial court’s analysis.

By the Court.—Judgment and order affirmed.

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

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