State v. Juan Andres Balderas, Jr.

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.
May 9, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2021AP1036-CR Cir. Ct. No. 2018CF5434

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUAN ANDRES BALDERAS, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MICHELLE ACKERMAN HAVAS, Judge. Affirmed.

Before Brash, 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. 2021AP1036-CR

¶1 PER CURIAM. Juan Andres Balderas, Jr., appeals a judgment of
conviction entered following a jury trial for one count of first-degree recklessly
endangering safety, and one count of second-degree recklessly endangering safety,
both with the use of a dangerous weapon. He also appeals the denial of his
postconviction motion.1 On appeal, Balderas contends that: (1) the discovery of a
new witness entitles him to a new trial; (2) the circuit court erred when it failed to
provide a castle doctrine jury instruction; and (3) his trial was unconstitutional.
Upon review, we reject Balderas’s arguments and affirm.

BACKGROUND

¶2 Balderas was charged with one count of first-degree recklessly
endangering safety and one count of second-degree recklessly endangering safety,
both with the use of a dangerous weapon. According to the criminal complaint,
Balderas shot his brother, E.B., in the neck. As E.B. ran away, additional shots
were fired.

¶3 Relevant to this appeal, at trial, E.B. testified that Balderas was his
older brother, and that prior to the shooting there was a family argument on social
media. On November 12, 2018, E.B. decided to go to Balderas’s house to talk to
him.

1
We note that Balderas’s notice of appeal also seeks to appeal an order denying a
motion for release on bond pending appeal, and an order denying a motion to reconsider this
request. Balderas, however, does not develop an argument or cite any legal authority related to
the denial for release on bond pending appeal. We do not address undeveloped and conclusory
arguments. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).
Therefore, we do not discuss this request further.

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No. 2021AP1036-CR

¶4 E.B. parked across the street from Balderas’s house, and saw
Balderas outside in his yard. E.B. and Balderas made eye contact, and then
Balderas began walking to his van. E.B. then got out of his car. As E.B.
approached the van, Balderas was sitting in the driver’s seat. E.B. made eye
contact with Balderas and “kind of said hey.” Balderas produced a gun and shot
E.B. in the neck. E.B. said, “what the hell, you shoot your own brother.” Balderas
responded, “hell yeah,” raised his gun, and started firing again. E.B. ran away and
told some road workers to call the police. According to E.B., he did not crouch or
tiptoe to the van, he did not have anything covering his face, his sweatshirt hood
was not up, and he was not armed with a weapon.

¶5 In support of E.B.’s testimony, the State introduced a photo showing
the bullet wound to E.B.’s neck. The State also introduced a photo of E.B.’s
sweatshirt showing a bullet hole at the top of the hood. Based on the location of
the bullet hole at the top of the hood, the State argued that if E.B.’s hood had in
fact been up, the bullet wound would have been on E.B.’s head, not his neck.
Thus, the State contended that Balderas was not telling the truth about E.B. having
his hood up.

¶6 Balderas testified that on the day of the shooting, he went outside to
his van to go to work. As he left the house, he did not see anyone. Once Balderas
was in his van, he saw someone in his side mirror “with their hoody on creeping
up” on the side of his van. Balderas testified that when he saw a person
approaching his van, he felt scared for his life. Balderas testified that the person
opened the door and swung at him. In response, Balderas grabbed his gun and
fired a warning shot. After firing a warning shot, Balderas recognized E.B.
Balderas testified that E.B. said that “I can’t believe I’m shot” and then started
running.

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No. 2021AP1036-CR

¶7 According to Balderas, E.B. stopped by some garbage cans and bent
down, and it looked like he was raising something in his hand. Balderas then
discharged his weapon two more times into his neighbor’s lawn saying, “I’m not
fucking playing.” Later, Balderas testified that “now that I think about it, maybe
he was putting a gun down” so the police would not find it. Balderas continued
that “[n]ow, that I’m thinking about it, why would he go over there and bend
down? He’s either putting the gun down or picking the gun up.” Balderas
admitted, however, that he never mentioned his suspicions to the police. When
asked to explain how E.B.’s hood could have been up, given that the bullet hole
was in the top of the hood and E.B. was not shot in the head, Balderas said that
“he was crouched down and the bullet was bouncing around in there.”

¶8 The circuit court provided a self-defense instruction to the jury on
both counts. See WIS JI—CRIMINAL 805. Subsequently, during deliberations, the
jury inquired as to whether bodily harm has to occur before force can be used in
self-defense or whether a person can use force if they merely fear that they will be
harmed. Balderas’s trial attorney argued that the proper response would be to
instruct the jury to read the jury instructions. The circuit court agreed, and
instructed the jurors to refer to the jury instructions.

¶9 The jury found Balderas guilty as charged. Postconviction, Balderas
moved for a new trial based on newly-discovered evidence, or in the interest of
justice. The motion argued that the police failed to take a statement from Amanda
Bailey, who asserted in a post-trial affidavit that she witnessed the incident
between Balderas and E.B. Balderas also claimed that his due process rights were
implicated because police failed to take Bailey’s testimony. Balderas did not raise
any claims regarding the jury instructions.

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No. 2021AP1036-CR

¶10 On April 7, 2021, the circuit court held an evidentiary hearing. At
the hearing, Bailey testified that she is friends with Balderas’s domestic partner,
Delvina Harris. Bailey testified that on November 12, 2018, she was in the alley
in view of Balderas’s residence because she was going to use the garage to work
on her car. Bailey saw a man with darker clothing and a hood on walking towards
Balderas’s van. As the person walked, “their pace picked up.” The person then
went between Balderas’s van and a garage. Bailey testified that the van obscured
her view of the man at that point. Bailey heard a pop. A few seconds later, she
heard a second pop and a scream. Due to safety concerns, she left the scene. As
she left, she saw the man run away.

¶11 After Bailey returned to the scene, an officer told her that “You can’t
come in here.” She responded, “Why can’t I come in here? I was here when it
happened.” Bailey then left the scene because the police were not listening to her.
After Bailey spoke to Harris, she returned to the scene a second time. Bailey
again tried to give her eyewitness account to the same officer, who refused her
again.

¶12 Detective Anna Ojdana testified that she reviewed her body camera
footage and Bailey only approached her at the scene on a single occasion and did
not try to give her information about the shooting. Detective Ojdana testified that
Bailey approached her and said, “I lived around the corner I seen the cops here,
I’m here to check on my friend.” Detective Ojdana responded that Bailey’s friend
was not involved and the shooting did not take place in the house. The State
moved into evidence Detective Ojdana’s body camera footage and footage from a
squad car.

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No. 2021AP1036-CR

¶13 On April 26, 2021, after hearing argument from both parties, the
circuit court issued an oral ruling concluding that Bailey’s testimony did not
justify a new trial because it was merely cumulative, not material, and most likely
would not change the result.

¶14 Balderas moved for reconsideration to present further testimony
from another individual, Delvina Harris, who would corroborate that Bailey was
present at the scene. Balderas complained that the hearing limited the testimony to
“only” Bailey’s testimony, but the State was permitted to call Detective Ojdana.

¶15 The circuit court denied the motion for reconsideration. The circuit
court faulted Balderas for failing to timely object or seek to present Harris’s
testimony. In addition, the court noted that Harris was not an eyewitness to the
shooting, and could not “offer any useful testimony about what happened.” Even
if Harris placed Bailey at the scene of the shooting, the court found that Bailey’s
testimony about what she actually saw was “not enough … to give rise to a
reasonable probability of a different outcome at a new trial[.]” This appeal
follows. Additional relevant facts are referenced below.

DISCUSSION

¶16 On appeal, Balderas contends: (1) the discovery of Bailey, a new
witness, entitles him to a new trial as newly-discovered evidence, in the interest of
justice, or a Brady violation;2 (2) the circuit court erred when it failed to provide a

2
See Brady v. Maryland, 373 U.S. 83 (1963).

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No. 2021AP1036-CR

“castle doctrine” jury instruction; and (3) his trial was unconstitutional. We
address each of these arguments in turn.3

I. Bailey’s testimony

A. Newly-Discovered Evidence

¶17 Balderas first contends that Bailey’s testimony constitutes newly-
discovered evidence.

¶18 To prevail on a newly-discovered evidence claim, a defendant must
show by clear and convincing evidence that: “(1) the evidence was discovered
after conviction; (2) the defendant was not negligent in seeking evidence; (3) the
evidence is material to an issue in the case; and (4) the evidence is not merely
cumulative.” State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62
(citation omitted). If a defendant satisfies his burden on all four of these elements,
the circuit court must then determine “whether a reasonable probability exists that
a different result would be reached in a trial.” State v. Avery, 2013 WI 13, ¶25,
345 Wis. 2d 407, 826 N.W.2d 60 (citation omitted).

¶19 “The decision to grant or deny a motion for a new trial based on
newly-discovered evidence is committed to the circuit court’s discretion.” Id.,
¶22. “A court properly exercises its discretion if it relies on the relevant facts in

3
We note that in his briefs to this court, Balderas references several other claims in
passing, including that: the circuit court improperly prevented Delvina Harris from testifying at
the evidentiary hearing; the circuit court failed to apply the proper sentencing factors; and his
sentence was excessive. These arguments, however, are conclusory and undeveloped. As a
result, we decline to address them. See Pettit, 171 Wis. 2d at 646.

7
No. 2021AP1036-CR

the record and applies the proper legal standard to reach a reasonable decision.”
State v. Edmunds, 2008 WI App 33, ¶8, 308 Wis. 2d 374, 746 N.W.2d 590.4

¶20 Here, Bailey’s testimony is not material to an issue in the case. At
the evidentiary hearing, Bailey in essence testified that she saw a person with
darker clothing and a hood on walking to Balderas’s van. Bailey then heard a
“pop” followed by a second “pop” and a scream. Bailey then saw the man run
away.

¶21 Bailey, however, testified that she did not observe any interaction
between E.B. and Balderas because her view was obscured by the van. In
addition, given that she was “far away,” she could not hear if any discussion took
place. As a result, as the State observes, Bailey could not testify to whether E.B.
startled Balderas, whether Balderas intended to shoot E.B. or simply fire warning
shots, or whether he was aiming at E.B. when he fired the second and third shots.
Bailey did not observe any interaction between E.B. and Balderas or witness the
actual shooting.5 Therefore, Bailey’s testimony is not material, and we conclude

4
We observe that in some cases the reasonable probability determination of the newly-
discovered evidence test is reviewed for an erroneous exercise of discretion. See State v. Avery,
2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60; State v. Edmunds, 2008 WI App 33, ¶16,
308 Wis. 2d 374, 746 N.W.2d 590. In contrast, other cases state that this determination is a
question of law that we review de novo. See State v. Plude, 2008 WI 58, ¶33, 310 Wis. 2d 28,
750 N.W.2d 42; State v. Watkins, 2021 WI App 37, ¶44, 398 Wis. 2d 558, 961 N.W.2d 884.
Because Bailey’s testimony is not material, and thus, does not satisfy the criteria for newly-
discovered evidence, we do not reach the question of whether a reasonable probability exists that
a different result would be reached in a trial and the accompanying standard of review. See State
v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (stating that “cases should be
decided on the narrowest possible ground”).
5
Balderas states that Bailey “thought [E.B.] may have been involved in a carjacking[.]”
However, the carjacking theory was suggested by postconviction counsel at the evidentiary
hearing. Postconviction counsel asked,” Maybe a carjacking?” Bailey responded, “It could have
been, yes.”

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No. 2021AP1036-CR

that the circuit court did not erroneously exercise its discretion when it denied
Balderas’s newly-discovered evidence claim.

¶22 Balderas seems to suggest that the circuit court erroneously denied
his newly-discovered evidence claim based on an improper credibility
determination at the April 26 hearing. See Avery, 345 Wis. 2d 407, ¶25 (stating
that “the court is not to base its decision solely on the credibility of the newly
discovered evidence, unless it finds the new evidence to be incredible”). The
transcript of the evidentiary hearing reflects, however, that the circuit court’s
comments relating to credibility were in regards to Bailey’s claims about
attempting to speak to the officers twice and being rebuffed, not in regards to
Bailey’s testimony about what she saw. Thus, we reject Balderas’s claim that the
circuit court erroneously denied his newly-discovered evidence due to improper
credibility determinations. See id., ¶22.

B. Interest of Justice

¶23 Balderas also contends that he is entitled to a new trial in the interest
of justice based on Bailey’s testimony. Balderas states that he “amends” all of his
prior references to WIS. STAT. §§ 805.15 (2021-22)6 and 805.16 to WIS. STAT.
§ 974.02.

¶24 Balderas, however, fails to sufficiently develop an argument on this
point. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).
Moreover, Balderas appears to rely on the same facts as his newly-discovered

6
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP1036-CR

evidence claim. As stated above, we reject Balderas’s claim that Bailey’s
testimony constitutes newly-discovered evidence. Thus, we are not persuaded that
this provides grounds for a new trial in the interest of justice. Reversals in the
interest of justice are only granted in exceptional cases, and we are not convinced
this is the type of exceptional case warranting an exercise of our discretionary
powers. State v. Kucharski, 2015 WI 64, ¶41, 363 Wis. 2d 658, 866 N.W.2d 697.

C. Brady Claim

¶25 In addition, Balderas argues that the failure to turn over Detective
Ojdana’s body camera, which showed Bailey, constitutes a Brady violation. See
Brady v. Maryland, 373 U.S. 83 (1963).

¶26 To establish a Brady violation, a defendant needs to show that:
(1) the evidence was favorable to the defense, either because it is exculpatory or
impeaching; (2) the evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) the evidence was material. State v. Wayerski,
2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468.

¶27 The State contends that Balderas failed to preserve his Brady claim
because he did not raise it in his postconviction motion.7 Alternatively, the State
contends that Balderas’s claim fails on the merits.

¶28 Even if we assume that Balderas’s claim is not forfeited, we agree
with the State that it fails on the merits. Detective Ojdana’s body camera footage

7
As the State observes, Balderas did not discuss his Brady claim in his postconviction
motion. We note, however, that Balderas referenced Brady in his postconviction argument, and
in his motion for reconsideration.

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No. 2021AP1036-CR

is neither exculpatory nor material as it does not contain the contents of Bailey’s
post-trial statement or what she witnessed. Moreover, Bailey’s statement itself is
not exculpatory. As discussed above, Bailey testified that she did not actually see
Balderas shoot E.B. or hear any discussion between the two. Thus, Balderas
cannot show that there is a Brady violation entitling him to a new trial. See
Wayerski, 385 Wis. 2d 344, ¶35.

II. Castle Doctrine

¶29 Balderas argues that the circuit court erred in not instructing the jury
as to the castle doctrine. Balderas also argues this instruction should have been
given when the jury inquired about self-defense.

¶30 WISCONSIN STAT. § 939.48 addresses self-defense. Wisconsin’s
castle doctrine is codified in § 939.48(1m)(ar), which provides:

If an actor intentionally used force that was intended or
likely to cause death or great bodily harm, the court may
not consider whether the actor had an opportunity to flee or
retreat before he or she used force and shall presume that
the actor reasonably believed that the force was necessary
to prevent imminent death or great bodily harm to himself
or herself if the actor makes such a claim under sub. (1) and
either of the following applies:

1. The person against whom the force was used was in the
process of unlawfully and forcibly entering the actor’s
dwelling, motor vehicle, or place of business, the actor was
present in the dwelling, motor vehicle, or place of business,
and the actor knew or reasonably believed that an unlawful
and forcible entry was occurring.

2. The person against whom the force was used was in the
actor’s dwelling, motor vehicle, or place of business after
unlawfully and forcibly entering it, the actor was present in
the dwelling, motor vehicle, or place of business, and the
actor knew or reasonably believed that the person had
unlawfully and forcibly entered the dwelling, motor
vehicle, or place of business.

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No. 2021AP1036-CR

¶31 Balderas acknowledges that the Wisconsin Judicial Conference
Criminal Jury Instructions Committee’s note indicates that the presumption in
WIS. STAT. § 939.48(1m)(ar) does not change the substance of the existing
privilege of self-defense or create an alternative to the existing privilege. See WIS
JI—CRIMINAL 805A. Rather, it only affects what a defendant must show to have
the privilege of self-defense submitted to the jury. Id. Balderas nonetheless
appears to contend that the Committee was wrong and the castle doctrine is
available to be provided to the jury.

¶32 Even if we were to assume that the Committee is wrong and a castle
doctrine instruction was available to provide to the jury—and we empathize we
are not drawing that conclusion here—Balderas’s arguments are forfeited.

¶33 Balderas raises his castle doctrine claim for the first time in this
court. “It is well-established law in Wisconsin that those issues not presented to
the [circuit] court will not be considered for the first time at the appellate level.”
Shadley v. Lloyds of London, 2009 WI App 165, ¶25, 322 Wis. 2d 189, 776
N.W.2d 838. Balderas did not raise this issue in his postconviction motion, and
there is no indication in the record that Balderas’s trial attorney requested a castle
doctrine instruction or otherwise objected to the self-defense instruction provided.
Nor does Balderas allege that any such objection was made off-the-record during
the trial. The failure to object “constitutes a [forfeiture] of any error in the
proposed instructions,” see WIS. STAT. § 805.13(3), and this court “has no power
to reach an unobjected-to jury instruction,” see State v. Trammell, 2019 WI 59,
¶25, 387 Wis. 2d 156, 928 N.W.2d 564.

¶34 Moreover, during deliberations, when the jury asked about self-
defense, Balderas’s trial attorney specifically requested that the circuit court

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No. 2021AP1036-CR

instruct the jury to read the jury instructions, and the circuit court agreed. A party
cannot request that a court take a specific action and then complain on appeal
when the court adopted the party’s position. See Shawn B.N. v. State, 173
Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992).

¶35 Balderas suggests that he could not forfeit his challenge because the
Committee note prevented an objection at trial. Balderas cites no legal authority
in support of this argument, and it is unclear why a challenge to the Committee
note could not be raised at the trial court level to preserve it for appellate review,
or in his postconviction motion. Thus, we conclude that Balderas forfeited any
challenge to the jury instructions.

III. Constitutionality of the Trial

¶36 Lastly, Balderas contends that his trial was unconstitutional “for lack
of fairness and due process.” As the State suggests, this appears to be nothing
more than a rehash of his previous arguments. In his argument, Balderas states
that Bailey’s testimony was material and was not cumulative, refers to the absence
of the castle doctrine instruction, and contends that the failure to turn over
Detective Ojdana’s body camera footage was a Brady violation. As discussed
above, all of Balderas’s claims fail. Recasting these arguments as constitutional
claims does not change our conclusion that Balderas is not entitled to relief.

¶37 Therefore, for all of the reasons above, we reject Balderas’s
arguments and affirm.

By the Court.—Judgment and order affirmed.

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

13