State v. Antonio O. Bratcher

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 18, 2026
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. 2024AP1445-CR Cir. Ct. No. 2019CF3114

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTONIO O. BRATCHER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: J.D. WATTS, Judge. Affirmed.

Before White, C.J., Donald, and Geenen, 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).

¶1 PER CURIAM. Antonio O. Bratcher appeals from a judgment,
entered upon a jury’s verdict, convicting him of one count of first-degree reckless
No. 2024AP1445-CR

homicide while using a dangerous weapon, five counts of first-degree recklessly
endangering safety while using a dangerous weapon, one count of possession of a
firearm by a felon, and one count of fleeing law enforcement. Bratcher
argues: (1) the circuit court erroneously admitted impermissibly suggestive lineup
identification evidence; and (2) the ballistics expert testimony violated Bratcher’s
right of confrontation.

¶2 We reject Bratcher’s arguments and conclude: (1) Bratcher failed to
show that the lineup procedure was impermissibly suggestive; and (2) the State
proved beyond a reasonable doubt that the admission of the ballistics expert
testimony was harmless. Accordingly, we affirm his judgment of conviction.

BACKGROUND

¶3 On July 13, 2019, City of Milwaukee police officers responded to a
911 call reporting that a child had been shot at the intersection of 42nd and
Townsend Streets. At the scene, in the rear seat of an automobile, officers located
a young child who had suffered a gunshot wound to her head. The child was later
pronounced dead. Two adults and three other children were in the vehicle at the
time of the shooting.

¶4 Amy,1 the deceased child’s mother, was identified as the driver of
the vehicle at the time of the shooting. Amy had picked up her friend, Susan, and
Susan’s child shortly before the shooting. Susan’s child was seated with Amy’s
three children in the back seat, with Susan in the passenger seat. As Amy pulled

1
We use pseudonyms to refer to the victims in this case. See WIS. STAT. RULE 809.86
(2023-24). All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP1445-CR

away from Susan’s house, Amy stopped abruptly to allow a black SUV to pass.
The SUV had the word “Princess” written across the top of the windshield in
large, cursive pink letters. The black SUV idled behind Amy’s vehicle while Amy
turned onto 42nd Street and began to drive northbound toward Fond du Lac
Avenue. Susan heard a gunshot, turned and observed that the rear window of the
automobile had been shattered, and the same black SUV with distinct lettering was
following them. Susan also noted that one of Amy’s children had slumped over in
the back seat. Susan then observed the driver of the black SUV point a handgun
toward Amy’s vehicle, shooting twice more.

¶5 Officers later observed a vehicle matching the description of the
black SUV and attempted to stop it, but the driver sped off. During the pursuit,
the SUV crashed and was abandoned by the driver. From the vehicle, officers
recovered a .45 caliber semi-automatic pistol, a pistol magazine loaded with .45
caliber cartridges, a single spent .45 caliber casing, and multiple documents and
pieces of mail bearing the name “Antonio Bratcher.” Investigators recovered a
fingerprint from the pistol magazine, and the print was later identified as the
fingerprint of Bratcher’s left thumb. Investigators also recovered a palm print
from the exterior of the driver’s door, and this print was later identified as
Bratcher’s right palm print. At the scene, officers located two spent .45 caliber
casings in the street where Amy’s vehicle had been stopped.

¶6 Soon after locating the crashed vehicle, officers found Bratcher
hiding under a front porch. Bratcher fled on foot and was taken into custody after
a short pursuit. Two days after the shooting, Susan identified Bratcher as the
shooter in a lineup.

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No. 2024AP1445-CR

¶7 Bratcher was charged with eight different felony counts, and the case
was tried to a jury. The State presented video from a Ring camera mounted
outside the door of a residence associated with Bratcher. The video showed
Bratcher leaving the residence about an hour before the shooting with what
appeared to be a large frame pistol butt hanging out of his right pants pocket. In
the video, Bratcher walked to a black SUV that drove away. After his arrest,
Bratcher was recorded in jail telling another individual that officers had a Ring
video that “shows [Bratcher] walking out of the house with the pistol to the truck.”

¶8 Susan testified that as they drove down 42nd Street, Susan heard a
“pop, pop” and looked up to see a hole in the rear windshield. Susan saw the
driver of the SUV and a firearm, and she later heard one or two more shots. Susan
said she looked directly at the driver “because he was still shooting at us,” and that
she got a good look at his face. She also remembered that the driver was wearing
a black T-shirt. Susan testified that she identified Bratcher as the shooter in a
lineup at the police station. She also made an in-court identification of Bratcher as
the shooter.

¶9 Detective Jeffrey Sullivan testified that he responded to the shooting
and located two .45 caliber casings at the scene. Detective Sullivan further
testified that he later responded to North 26th Street and saw that a black SUV
with the word “Princess” in pink cursive lettering at the top of the windshield had
crashed. Inside the SUV, Detective Sullivan found a .45 caliber semiautomatic
handgun with a cartridge in the chamber and a .45 caliber magazine with
cartridges in it. Detective Rodolfo Alvarado also testified that he and other
officers processed the SUV for fingerprints and DNA. Inside the SUV, officers
recovered documents with Bratcher’s name on them and a black baseball cap that
was sent for forensic testing.

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No. 2024AP1445-CR

¶10 Detective Harold Thomas testified that he responded to the crash
scene and spoke to a witness, who indicated the path of the person who fled the
SUV. In examining that flight path, officers found a black T-shirt with what
appeared to be wet blood on it inside a fenced-in area; the fence had been broken,
and there was blood on several of the wooden fence slats near where the T-shirt
was found. In the carport, officers found a belt and a blood-stained men’s white
undershirt. Blood samples were collected from the fence slats and the clothing
items. Amber Rasmussen, a DNA analyst at the Wisconsin State Crime
Laboratory, testified that she conducted the DNA analysis on the T-shirt, belt,
baseball cap, and swabs from the wood fence, the handgun, the magazine, and the
SUV’s driver’s door armrest. Rasmussen identified Bratcher as either the sole
source or major source of the DNA on several of the items, including the T-shirt,
the belt, the wood fence, and the armrest. Bratcher’s DNA was also found on
several swabs from the firearm.

¶11 Detectives William Schroeder and Lori Rom testified about the
lineup procedure. Detective Schroeder sat with Susan during the lineup while
Detective Rom ran the lineup.2 Detective Schroeder testified that each participant
in the lineup entered the room one at a time, and Detective Rom instructed each
participant to make quarter turns before leaving the room. Detective Rom
informed Susan that she had the option to ask and view the lineup a second time.
Susan asked to view the lineup a second time before positively identifying
Bratcher.

2
Two other witnesses to the shooting also participated in the lineup. The first witness
saw the shooting from her front yard, but she testified that she could not identify the shooter in
the lineup. The second witness identified Bratcher in the lineup, but did not testify at trial. We
therefore limit our discussion to the admissibility of Susan’s testimony.

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No. 2024AP1445-CR

¶12 Detective Tyler Kirkvolv testified that he handled Bratcher and the
fillers for the lineup with the goal “to have no one person standing out any more
than another.” Detective Kirkvolv acknowledged differences among the lineup
participants, including differences in facial hair, length of hair, and tattoos. He
also testified that witnesses viewing the lineup are told to disregard differences in
hair style, facial hair, and other features that change. The witnesses viewed the
lineup participants from fifteen-to-twenty feet away.

¶13 Bratcher had some facial injuries, and the other fillers in the lineup
did not, but the circuit court found that “it couldn’t tell who had the injuries” when
it viewed the lineup video, and it did not “note any injuries on [Bratcher].” When
it viewed a close-up photograph, the circuit court “had to look very carefully in the
close-up to be able to determine” any injuries.

¶14 Xai Xiong, a firearms and tool mark examiner from the Wisconsin
State Crime Laboratory, provided the ballistics testimony at trial. Xiong did not
author the original ballistics report, nor did he fire the pistol to create cartridges
used to compare against the cartridges recovered by police. Instead, Xiong
performed “peer review and verification” through use of a comparison
microscope, comparing the cartridges created by the original analyst against the
cartridges recovered by police. Xiong testified that it was his opinion that the two
cartridges recovered from the scene were fired from the .45 caliber pistol
recovered from the black SUV. Xiong added nothing to the original report except
his conclusion that he would have reached the same result.

¶15 The jury found Bratcher guilty of all eight counts, and the circuit
court sentenced him to a total of thirty-six years of initial confinement and twenty-
two years of extended supervision. Bratcher appeals.

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No. 2024AP1445-CR

DISCUSSION

I. The lineup was not impermissibly suggestive.

¶16 Bratcher brought a pretrial motion to suppress the lineup
identification evidence, arguing that the lineup was impermissibly suggestive. The
circuit court denied the motion, and this evidence was admitted at trial.

¶17 We apply a two-step standard of review when analyzing a motion to
suppress. State v. Roberson, 2019 WI 102, ¶66, 389 Wis. 2d 190, 935 N.W.2d
813. First, we will uphold the circuit court’s findings of fact unless they are
clearly erroneous. Id. Second, we independently apply the “constitutional
principles to the facts found, which presents a question of law.” Id.

¶18 A defendant’s due process rights are implicated when an out-of-
court identification procedure is “both suggestive and unnecessary.” Perry v. New
Hampshire, 565 U.S. 228, 239 (2012). The likelihood of misidentification
violates a defendant’s right to due process. Neil v. Biggers, 409 U.S. 188, 198
(1972). That being said, reliability remains the “linchpin in determining the
admissibility of identification testimony.” Roberson, 389 Wis. 2d 190, ¶3
(quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). Therefore, a court may
admit an out-of-court identification based on an impermissibly suggestive
identification procedure if the out-of-court identification was reliable under the
totality of the circumstances. Biggers, 409 U.S. at 198-200.

¶19 Wisconsin courts apply a two-part test for determining whether to
admit an out-of-court identification. Roberson, 389 Wis. 2d 190, ¶34. First, “the
defendant must meet an initial burden of showing that the identification procedure
employed by law enforcement was impermissibly suggestive such that there was a

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No. 2024AP1445-CR

very substantial likelihood of misidentification.” Id. Second, if the defendant
meets their burden, then the State must prove that the identification was
nonetheless reliable under the totality of the circumstances. Id., ¶35.

¶20 Bratcher argues that the lineup procedure was impermissibly
suggestive because: (1) the police allowed Susan to view the lineup a second time
contrary to internal operating procedures, and (2) the fillers in the lineup did not
closely resemble Bratcher. We reject Bratcher’s arguments and address each of
them in turn.

¶21 First, we address Bratcher’s argument that the lineup procedure
failed to follow Milwaukee Police Department (“MPD”) and Attorney General
(“AG”) lineup guidelines because Susan was allowed to view the lineup twice. As
a threshold matter, and as Bratcher acknowledges, MPD procedures and AG
opinions are not binding on Wisconsin courts. Moreover, the facts demonstrate
that the lineup challenged in this case complies with both the MPD procedures and
AG opinions cited by Bratcher.

¶22 The MPD procedure states: “Only upon request of the witness may
the witness view the subjects again after the lineup has been completed. If this
occurs, it must be thoroughly documented, and the entire lineup shall be viewed
by the witness following the above procedures. The administrator should never
suggest additional viewing.” The AG opinion states:

The practice of conducting multiple identification
procedures with the same witness and the same suspect
should ordinarily be avoided because of the potential for
suggestiveness and the potential to contaminate a witness’s
memory. An eyewitness viewing a second procedure with
the same suspect may believe that the suspect’s presence in
both procedures suggests that authorities believe the
suspect is the perpetrator.

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No. 2024AP1445-CR

¶23 Detective Rom did not suggest a second viewing of the lineup
contrary to MPD policy. Rather, she informed Susan that she had the option to
ask and view the lineup a second time. Additionally, there was no risk that
viewing the same lineup a second time would suggest that Bratcher was the
perpetrator contrary to the AG opinion because the lineup was the same. That is,
Bratcher and all the same fillers, in the same order, were viewed a second time, so
there is no possibility that Susan would have been influenced by Bratcher
appearing in both viewings where all the fillers also appeared twice.

¶24 Second, Bratcher asserts the fillers in the lineup were impermissibly
suggestive because they did not closely resemble Bratcher or bear distinct facial
scars that Bratcher had. We agree with the circuit court that any difference in
appearance between Bratcher and the fillers is insignificant. Although there were
differences in facial hair and hair length, Susan was instructed to disregard these
and other easily modified characteristics. Moreover, the circuit court found that
Bratcher’s facial scars were unnoticeable in a close-up photograph, let alone from
the witness’s position of 15-20 feet away. These findings are not clearly
erroneous. Roberson, 389 Wis. 2d 190, ¶66.

¶25 Accordingly, we conclude that the lineup was not impermissibly
suggestive, and the circuit court did not err by admitting Susan’s testimony
regarding her positive identification of Bratcher in the lineup.

II. The admission of Xiong’s testimony was harmless.

¶26 Bratcher argues that the circuit court erroneously admitted Xiong’s
ballistics expert testimony. Specifically, Bratcher claims that the admission of
Xiong’s testimony violated his constitutional right of confrontation because the
State failed to produce the analyst that authored the ballistics report and fired the

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No. 2024AP1445-CR

gun to create the comparison cartridge. Bratcher relies on Smith v. Arizona, 602
U.S. 779 (2024), which was issued after Bratcher’s trial. However, Bratcher’s
assertion that Xiong’s testimony was unconstitutionally admitted at trial is subject
to harmless error analysis, and we conclude that the admission of Xiong’s
testimony was harmless beyond a reasonable doubt. Accordingly, we do not
discuss the applicability of Smith. See State v. Blalock, 150 Wis. 2d 688, 703,
442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest
possible ground[.]”).

¶27 For an error to be harmless, the party benefiting from it (here, the
State) must demonstrate that it is “clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error.” State v. Harvey,
2002 WI 93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189 (citation omitted). While
“harmless error is not subject to a precise mathematical formula,” State v.
Monahan, 2018 WI 80, ¶63, 383 Wis. 2d 100, 913 N.W.2d 894, multiple non-
exhaustive factors may assist the analysis, including: the importance of the
erroneously admitted evidence, the presence or absence of evidence corroborating
or contradicting the erroneously admitted evidence, the nature and strength of the
defense, and the nature and strength of the State’s case, State v. Hunt, 2014 WI
102, ¶27, 360 Wis. 2d 576, 851 N.W.2d 434. Whether an error was harmless is a
question of law we review independently. State v. Beamon, 2011 WI App 131,
¶7, 336 Wis. 2d 438, 804 N.W.2d 706.

¶28 We conclude that the State proved beyond a reasonable doubt that
the admission of Xiong’s testimony was harmless. As summarized above, the
evidence of Bratcher’s guilt was overwhelming, as was the other evidence linking
the pistol to the SUV and the SUV to Bratcher. This evidence includes: Bratcher’s
DNA found in the SUV and on the pistol; Bratcher’s name on documents in the

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No. 2024AP1445-CR

SUV; the easily-identifiable nature of “Princess” written in pink, cursive letters
across the top of the SUV’s windshield; the video of Bratcher carrying a pistol
while getting into the SUV; Susan’s in-court and out-of-court identifications; and
the inculpatory recorded jail call. Given this evidence, it is “clear beyond a
reasonable doubt that a rational jury would have found [Bratcher] guilty absent the
error.” See Harvey, 254 Wis. 2d 442, ¶49 (citation omitted).

CONCLUSION

¶29 We conclude that the lineup identification evidence admitted at trial
was not impermissibly suggestive. Additionally, assuming without deciding that
the ballistics testimony should have been excluded from trial, we conclude that
this alleged error was harmless beyond a reasonable doubt.

By the Court.—Judgment affirmed.

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

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