State v. Damian Darnell Washington

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.
July 10, 2024
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. 2022AP2192-CR Cir. Ct. No. 2019CF336

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAMIAN DARNELL WASHINGTON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Sheboygan County: REBECCA L. PERSICK, Judge. Affirmed in part, reversed
in part and cause remanded for further proceedings.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2022AP2192-CR

¶1 PER CURIAM. Damian Darnell Washington appeals a judgment of
conviction for multiple drug offenses and first-degree reckless homicide by
delivery of fentanyl. He also appeals an order denying his postconviction motion.
He raises numerous issues on appeal, only a portion of which we need to address.
We conclude the circuit court did not erroneously exercise its discretion when it
found cause to extend the deadline for holding the preliminary hearing. However,
we conclude Washington received constitutionally ineffective assistance as a
result of his attorney’s handling of a potential trial witness whose testimony was
ultimately excluded. Accordingly, we reverse the judgment of conviction and
remand for further proceedings.

BACKGROUND

¶2 Colton Haase was found deceased in the Mead Public Library
bathroom on May 3, 2019. There were drugs and drug paraphernalia near his
body. Postmortem testing revealed fentanyl at a level more than seven times the
therapeutic dose. No heroin or heroin metabolites were found in Haase’s tissues
during postmortem testing.

¶3 While police were investigating Haase’s death, they noted multiple
incoming messages on his cell phone from Jessica Grande, with whom he was in a
relationship. When interviewed, Grande ultimately admitted that she had provided
crack cocaine and heroin to Haase shortly before his body was found. She said
that she had sent Peter Bennett—whom Grande was also dating—to get the drugs
from their dealer, Washington. Grande told police that she had repackaged the
drugs before selling them to Haase and that she planned to meet up with Haase
later that afternoon. When interviewed, Bennett ultimately stated he had

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No. 2022AP2192-CR

purchased drugs from Washington and had given some of the drugs to Grande to
sell to Haase.

¶4 An Amended Information charged Washington with first-degree
reckless homicide by delivery of fentanyl as well as numerous other drug offenses
and bail jumping. Washington pled no contest to bail jumping, and a jury
convicted Washington of the other offenses. The circuit court imposed an
aggregate thirty-nine-year sentence.

¶5 Washington filed a postconviction motion. As relevant here, he
argued his case should have been dismissed because the preliminary hearing was
not held within ten days of the initial appearance pursuant to WIS. STAT.
§ 970.03(2) (2021-22).1 Second, Washington argued the court erred by excluding
the testimony of Maria Ramirez, who testified during an offer of proof that while
she and Grande were incarcerated together in block 19, Grande had told her that
she and Bennett had planned Haase’s death and later set up Washington. Third,
Washington located two additional inmate witnesses, both of whom testified that
Bennett had admitted to them that he had lied about Washington’s involvement.
Finally, Washington argued his trial attorney was constitutionally ineffective in his
handling of Ramirez’s testimony and in failing to object or otherwise challenge the
testimony of law enforcement officers regarding their opinions on the alignment of
Grande’s and Bennett’s stories.

¶6 The circuit court denied the motion. It concluded that dismissal was
inappropriate because there was good cause to delay the preliminary hearing,

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

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No. 2022AP2192-CR

namely that the State Public Defender (SPD) had been unsuccessful in appointing
counsel. As to Ramirez, the court determined that even if it had erred in excluding
her testimony based on her lack of personal knowledge, exclusion was still
warranted because her testimony was cumulative and, in any event, any error in
excluding the testimony was harmless. For the same reasons, the court rejected
Washington’s newly discovered evidence claim based on the new witnesses.
Finally, the court determined Washington’s trial counsel did not perform
deficiently. Washington now appeals.

DISCUSSION

¶7 Generally, Washington resurrects the claims advanced in his
postconviction motion. Our resolution of the appeal requires that we address only
a small number of the issues raised. First, we reject Washington’s assertion that
the circuit court lacked personal jurisdiction over him due to noncompliance with
WIS. STAT. § 970.03(2). Second, we address Washington’s ineffective assistance
of counsel claim regarding Ramirez’s testimony. Because we conclude he is
entitled to a new trial on that ground, it is not necessary to address his remaining
arguments. See Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 326
Wis. 2d 300, 786 N.W.2d 15 (“Issues that are not dispositive need not be
addressed.”).

I. Personal Jurisdiction

¶8 Washington made his initial appearance on May 7, 2019.
WISCONSIN STAT. § 970.03(2) required the preliminary hearing to be held within
ten days, unless the time was extended on stipulation of the parties or on motion
and for cause. The failure to hold a preliminary hearing within the prescribed time

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No. 2022AP2192-CR

results in a loss of personal jurisdiction, which requires dismissal without
prejudice. State v. Lee, 2021 WI App 12, ¶61, 396 Wis. 2d 136, 955 N.W.2d 424.

¶9 Washington’s preliminary hearing was not held until July 17, 2019,
having been adjourned numerous times based upon delays in the SPD appointment
process and conflicts of interests that required Washington’s first two attorneys to
withdraw. However, Washington appears to challenge only the adjournment that
occurred between May 7 and May 31, 2019.

¶10 Washington’s preliminary hearing was originally scheduled for
May 14. At that hearing, the circuit court noted it had received a letter from the
SPD requesting an adjournment to allow additional time to find counsel, which the
court granted. At the next hearing on May 31, the court noted that counsel had
been appointed for Washington, but the attorney had a conflict necessitating
withdrawal. The matter was adjourned until June 5, 2019, for cause.

¶11 Washington contends this procedure violated Lee because the circuit
court, in finding good cause at the May 14 hearing to extend the preliminary
hearing deadline, relied only on the lack of SPD-appointed counsel and did not
conduct a comprehensive examination of the reason for the adjournment, possible
prejudice to the parties, and the public interest. See Lee, 396 Wis. 2d 136, ¶¶43,
51. We do not interpret Lee to have required such a searching inquiry only one
week after the initial appearance.

¶12 Rather, Lee acknowledged that “difficulty in locating competent
counsel to represent an indigent defendant can be a justifiable reason for extending
the time limit for the preliminary hearing, especially early in the proceedings.”
Id., ¶51. The breaking point in Lee appears to have occurred after the defendant
was awaiting counsel for approximately two months, at which time the “need for

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No. 2022AP2192-CR

additional inquiries into the necessity of the delay, as well as consideration of the
alternative mechanism for appointing counsel, should have been obvious.” Id.,
¶52. Lee stands for the proposition that chronic delay—which does not include a
delay of merely one or two weeks—cannot be justified solely by reference to the
SPD’s failure to appoint counsel. See id., ¶59 (“The inquiry’s level of
thoroughness will be reflective of overall length of the delay in each case.”).

¶13 Washington is not similarly situated to the defendant in Lee. Under
the circumstances here, the circuit court did not violate WIS. STAT. § 970.03(2) by
finding good cause to extend the preliminary hearing time limit to May 31 based
solely on the lack of SPD-appointed counsel. Accordingly, the court did not
erroneously exercise its discretion when adjourning the preliminary hearing on
May 14. See Lee, 396 Wis. 2d 136, ¶59.

II. Ineffective Assistance of Counsel

¶14 Washington argues he received constitutionally ineffective
assistance in connection with his trial attorney’s handling of Ramirez’s anticipated
testimony. To analyze this argument, we begin by setting forth the applicable
legal standards. We then discuss the factual predicate for the argument, as well as
the testimony at the Machner hearing.2 We conclude Washington has
demonstrated ineffective assistance of trial counsel relating to Ramirez’s proffered
testimony.

¶15 The Sixth Amendment guarantees a defendant the effective
assistance of counsel. State v. Savage, 2020 WI 93, ¶27, 395 Wis. 2d 1, 951

2
See State v. Machner, 92 Wis. 2d 797, 799, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2022AP2192-CR

N.W.2d 838. We review an ineffective assistance of counsel claim using a mixed
standard of review. Id., ¶25. The circuit court’s factual findings, including those
regarding trial counsel’s conduct and strategy, will not be overturned unless they
are clearly erroneous, but we review de novo whether counsel’s conduct
constitutes constitutionally ineffective assistance. Id.

¶16 To prevail on an ineffective assistance claim, the defendant must
show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant. Id.; see also Strickland v. Washington,
466 U.S. 668, 687 (1984). If the defendant fails to establish either prong, we need
not address the other. Savage, 395 Wis. 2d 1, ¶25.

¶17 To demonstrate deficient performance, the defendant must show that
his or her attorney made errors so serious that he or she was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Id., ¶28. We presume that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and we will grant relief only upon a showing that counsel’s performance was
objectively unreasonable under the circumstances. Id. Prejudice is demonstrated
by showing a reasonable probability that, but for counsel’s unprofessional
conduct, the result of the proceeding would have been different. Id., ¶32.

¶18 Washington’s ineffective assistance claim involves Ramirez’s
testimony, which was discovered by the defense mid-trial.3 The circuit court

3
Washington’s brief-in-chief contains mostly citations to the appendix, which practice
does not conform to WIS. STAT. RULE 809.19(1)(e). We remind counsel of the obligation to
include accurate citations to the appellate record where appropriate. “We have no duty to scour
the record to review arguments unaccompanied by adequate record citation.” Roy v. St. Lukes
Med. Ctr., 2007 WI App 218, ¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d 256.

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No. 2022AP2192-CR

stated it was familiar with Ramirez and knew she previously had some mental
health issues. The court provided time for the defense investigator to speak with
Ramirez, then it permitted Ramirez to testify outside the jury’s presence in the
form of an offer of proof before deciding whether her testimony was admissible.

¶19 Ramirez testified that she had met Washington two days before
while they were incarcerated together. A “couple months” prior to meeting
Washington, Ramirez stated she had been housed in block 19 with Grande.
Ramirez testified that while they were housed together, Grande had shown
Ramirez some discovery from her case and had told Ramirez that she and Bennett
planned to kill Haase because of their romantic entanglement. Grande told
Ramirez that Bennett had received the drugs from a friend, but after Haase’s
death, they “freaked out” and set up Washington to take the blame. Upon meeting
Washington, Ramirez realized he was the person Grande had admitted to setting
up.

¶20 During argument, the prosecutor expressed skepticism that Grande
and Ramirez had ever been confined together during the time period in question.
The circuit court granted a brief recess to allow the prosecutor to gather jail
records to determine whether they were ever housed together. After the break,
Sergeant Mark Richter testified that based upon his review of the housing records
for Ramirez and Grande, the two were never placed together after May 3, 2019,
except for a brief time when they occupied their own cells in receiving.

¶21 The court, in follow-up questioning, specifically asked Richter to
confirm that Ramirez and Grande were never in block 19 together, which Richter
did. The court excluded Ramirez’s testimony on that basis, remarking, “It’s clear
from the uncontroverted facts based on records that are regularly maintained that

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No. 2022AP2192-CR

the testimony that Ms. Ramirez gave cannot be factually accurate and is not
factually accurate.”

¶22 In fact, it was Richter, not Ramirez, who was mistaken. As Richter
acknowledged during postconviction proceedings, the relevant inmate records
showed that Grande and Ramirez were housed together on block 19 between
September 15 and September 20, 2019. Washington’s trial counsel testified
during the Machner hearing that he found the inmate housing records “rather
difficult to decipher.” He therefore had relied on the State’s representation that the
records reflected that Ramirez and Grande had not been housed together.

¶23 We agree with Washington that his trial attorney performed
deficiently by failing to conduct a more through review of the inmate housing
records. The records—which log the entry date, release date, and location of the
inmate—are not so esoteric or complex that a reasonably competent attorney
would have had difficulty understanding them. A few more minutes spent trying
to understand the line entries likely would have revealed Richter’s error.
Alternatively, Washington’s counsel could have asked Richter questions about the
records to clear up any confusion. What he could not do—and what was
objectively unreasonable—was to simply assume that the records showed what
Richter and the State claimed. See State v. Mader, 2023 WI App 35, ¶29, 408
Wis. 2d 632, 993 N.W.2d 761, review denied, 2024 WI 4, 5 N.W.3d 601
(“[S]trategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation.”).

¶24 Washington has also demonstrated a reasonable probability of a
different outcome had Ramirez’s testimony been admitted. Grande’s and

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No. 2022AP2192-CR

Bennett’s credibility were key to the prosecution against Washington. Ramirez’s
testimony, if believed, would have cast Grande and Bennett in a much different
light, providing a motive not only for them to falsely implicate Washington, but
also suggesting that Grande and Bennet themselves were responsible for Haase’s
death. In the context of the other evidence at trial, Ramirez’s testimony could
have permitted the jury to conclude that it was not Washington’s drugs that killed
Haase. At a minimum, the absence of her testimony undermines our confidence in
the outcome of the trial.

III. Remaining Appellate Arguments

¶25 Having concluded that Washington is entitled to a new trial, we have
no need to reach the additional issues he raises. See Maryland Arms Ltd. P’ship
v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 (“Issues that are
not dispositive need not be addressed.”). In particular, we decline to reach the
following issues raised in Washington’s brief: (1) whether the trial evidence
demonstrated a lack of “probable cause” to believe Washington committed the
charged offenses;4 (2) whether the circuit court otherwise erroneously exercised its
discretion when it excluded Ramirez’s testimony; (3) whether the prosecutor
committed misconduct during Richter’s testimony; (4) whether Washington’s new
witnesses necessitate a new trial based on newly discovered evidence; and
(5) whether Washington’s trial attorney was constitutionally ineffective for failing
to object to certain testimony regarding the truthfulness of other witnesses.

4
To the extent Washington attempts to raise a sufficiency-of-the-evidence argument, the
State ably describes why we would reject any such argument.

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No. 2022AP2192-CR

By the Court.—Judgment and order affirmed in part, reversed in part
and cause remanded for further proceedings.

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

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