COURT OF APPEALS

DECISION

DATED AND FILED

April 4, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP1709-CR Cir. Ct. No. 2019CF1815

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY EDWARD PEARSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee

County: JEAN M. KIES, Judge. Affirmed.

Before Brash, C.J., Dugan and White, 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. 2021AP1709-CR

2

¶1 PER CURIAM. Anthony Edward Pearson appeals his judgment of 

conviction, entered upon a jury’s verdict, for first-degree recklessly endangering 

safety by use of a dangerous weapon, two counts of possession of a firearm by a 

felon, and two counts of disorderly conduct, with various repeater and domestic 

violence penalty enhancers attached. Pearson argues that the trial court erred 

when it admitted an out-of-court statement by a witness not at trial through the 

doctrine of forfeiture by wrongdoing. We conclude that the trial court’s decision 

to admit this statement was within its discretion and did not violate his rights 

under the Confrontation Clause. Accordingly, we reject Pearson’s argument and 

we affirm. 

BACKGROUND

¶2 This case arises out of Milwaukee police officers responding to a 

ShotSpotter1report of numerous shots being fired on North 33rd Street in 

Milwaukee in April 2019. According to the criminal complaint, police found 

spent cartridge casings in the street and near the house as well as bullet strikes that 

went through the walls of the house. The police investigation showed that the 

bullets and casings were from two firearms: a .40 caliber and a .45 caliber. There 

were four adults and three children inside the house at the time of the shooting. 

The suspected shooter was reported to have fled in a black Honda Civic.

 

1

 Testimony by Milwaukee police explained that ShotSpotter is technology that “detects 

gunfire.” It has been used in Milwaukee for approximately twenty years. ShotSpotter sensors 

detect and identify gunfire, and its algorithm distinguishes gunfire from “fireworks” or a “car 

back firing.” Milwaukee police are then dispatched to investigate. See also State v. Nimmer, 

2022 WI 47, ¶4, 402 Wis. 2d 416, 975 N.W.2d 598. 
No. 2021AP1709-CR

3

¶3 The complaint continued with the police officers and detectives’ 

contact with people at the scene. First, Serena identified Pearson as her husband 

and the father of her child as well as the person who shot at the house.2 Serena 

reported that she had gone to a tavern that evening with Pearson, Christine, who is 

Pearson’s sister, and Aaron, who is Christine’s husband. Pearson became upset 

with Serena for talking to someone else at the tavern. On the drive home, Pearson

and Serena drove together and Pearson twice used his left hand to squeeze 

Serena’s neck and impede her breathing. When they all arrived at Christine’s 

residence on North 33rd Street, Christine confronted Pearson about his abuse of 

Serena in the car; in response, Pearson struck Christine. The fight moved outside 

and was broken up by Serena and Desmond, who is Pearson and Christine’s 

nephew. Serena told police she went inside the house and thirty seconds later, the 

house was shot up.

¶4 Serena also informed police that Pearson was a felon, but he had 

access to two firearms that belonged to her—a 9mm handgun and a .40 caliber 

handgun—that were kept in a gun safe in Pearson’s car.

¶5 Christine told police that she was with Serena in the kitchen of her 

residence on North 33rd Street after they got back from the tavern. Pearson and 

Serena got into a fight, Pearson pushed Serena out of her chair, then said he was 

heading outside, and then punched Christine in the nose. Pearson exited the house 

twice, while stating, “y’all gonna see.” Christine closed the door and immediately 

heard shots fired directly at the house.

 

2

 To protect confidentiality and for ease of reading, we refer to the witnesses and victims 

in this matter by pseudonyms. See WIS. STAT. RULE 809.86 (2021-22). All references to the 

Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2021AP1709-CR

4

¶6 Aaron’s conversation with police confirmed that the four of them 

visited a tavern; Serena and Pearson argued over her talking to another person; and 

there was an argument when they returned to North 33rd Street. Aaron told 

Pearson to leave, and Pearson stated, “y’all gonna see.” Moments after Pearson 

left the house, Aaron recalled hearing approximately seventeen shots in two 

bursts.

¶7 The police also spoke with Desmond, who recounted that Pearson 

was in an argument in Christine’s residence on North 33rd Street and then went 

outside, where Desmond saw Pearson go to his car, pull a gun case out of the

vehicle, and several seconds later, “the house was shot up.” Desmond told police 

that Pearson had shown him two separate guns in the same gun safe approximately 

a week before the shooting.

¶8 Additionally, the police spoke with Pearson and Christine’s mother, 

who reported to police that Christine called during the incident and said that 

Pearson had shot up her house. She then stated that Pearson called her and 

claimed that Christine had shot at him; to which Pearson’s mother responded that 

she did not believe him and Pearson apologized.

¶9 Pearson turned himself in to police, and upon questioning, he first 

denied being with his wife on the night of the shooting, stating he was under a nocontact order with her. When told there was video of Serena at the bar with him, 

Pearson admitted they were together. He stated that he did not get physical with 

Serena in the car, but admitted to accidentally punching her when they were back 

at the residence on North 33rd Street. He stated he left in his car to clear his head 

and he left when he heard gunshots because he assumed they were aimed at him. 
No. 2021AP1709-CR

5

He did not immediately report the shooting to police because he was on parole and 

he did not want to go to jail.

¶10 In May 2019, the State issued the information against Pearson, 

which set forth five counts: first-degree recklessly endangering safety, with use of 

a dangerous weapon, the habitual criminality repeater, and the domestic abuse 

assessment penalty enhancers contrary to WIS. STAT. §§ 941.30(1), 939.63(1)(b), 

939.62(1)(b), 973.055(1); two counts of possession of a firearm by a person 

convicted of a felony with the repeat firearms crimes mandatory minimum 

sentence penalty enhancer contrary to WIS. STAT. §§ 941.29(1m)(a), 939.6195(2); 

and two counts of disorderly conduct with the habitual criminality repeater and the 

domestic abuse assessment penalty enhancers contrary to WIS. STAT.

§§ 947.01(1), 939.62(1)(a), 973.055(1).

¶11 The case against Pearson proceeded toward a jury trial. On the 

morning of the first day of trial in September 2019, the State informed the court 

that it filed a motion to introduce Serena and Desmond’s out-of-court statements 

during the trial under the doctrine of forfeiture by wrongdoing. In the motion, the 

State alleged that Pearson made several phone calls while in custody at the 

Milwaukee County Criminal Justice Facility (CJF). Pearson made at least four 

calls to Serena. When the police reviewed the call recordings, in a call on 

April 25, 2019, Serena told Pearson that his daughter, Sondra, would need to 

contact his probation officer for him. In a call on April 27, 2019, Pearson called 

Sondra and asked her to reach out to her uncle David and ask his son (Desmond)

to spare Pearson’s life. Pearson told Sondra that “D” saw him do it and he was a 

witness against Pearson. Sondra agreed to try to reach out in person to her uncle.
No. 2021AP1709-CR

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¶12 The State’s motion also recounted that after reviewing Pearson’s 

phone calls, his voice, and his location, the police concluded that Pearson next 

called Serena from another inmate’s account, telling her she should get a new 

number because they were not supposed to have contact. After discussing the 

account in the police report, Pearson told Serena that her account and Desmond’s 

account of the night of the shooting were “killing” him. Serena called Pearson 

from a different number and they discussed that Desmond was also in jail.

¶13 The State’s motion further set forth that from April 24, 2019, 

through May 3, 2019, Pearson called Serena more than seventy times. In multiple 

calls, Serena told Pearson she loved him and she will come or not come to 

proceedings depending on what he thinks is best. When served with a subpoena to 

testify during the final pretrial conference, Serena was upset and she called the 

DA’s office three days before trial stating she refused to testify. A process server 

attempted to serve Desmond with a subpoena to testify; however, an individual 

matching his description was uncooperative and refused to sign.

¶14 The trial court conducted a hearing that same day on the motion for 

forfeiture by wrongdoing. Serena was identified in the gallery of the courtroom; 

therefore, the State withdrew its request with regard to Serena. The State 

presented testimony first from a detective who reviewed Pearson’s recorded jail 

phone calls and who conducted the second interview with Pearson after he turned 

himself in. The detective’s testimony consisted of the facts alleged by the State in 

its motion. The State called the victim/witness advocate who testified about the 

State’s three failed attempts to serve Desmond. In the first attempt at the address 

on file for Desmond, a woman answered the door and said he wasn’t home. In the 

second attempt, a woman, who identified herself as Desmond’s grandmother,

answered the door stating she did not know where he stayed and that she saw him
No. 2021AP1709-CR

7

there from time to time. In the third attempt, a man generally matching 

Desmond’s description answered the door and refused to sign the subpoena. 

Finally the State called Desmond’s former attorney, who testified that the address 

used by the State’s process server was the address he used to reach Desmond, and 

his mail had not been returned.

¶15 The trial court found that the State made “made a good faith effort 

and exercised due diligence to secure the witness’ presence by virtue of their 

efforts on those three occasions to get him the subpoena.” Then, the trial court 

analyzed that Pearson’s phone calls showed that he had the requisite intent to 

prevent Desmond from testifying. The court concluded that the State met its 

burden under the doctrine of forfeiture by wrongdoing to introduce Desmond’s 

statements through the police detective witness testimony.

¶16 The trial then continued. The State called Serena, whose testimony 

was somewhat similar to that recorded in the criminal complaint; although she 

denied domestic violence by Pearson. The State called multiple police officers 

and detectives who responded to the shots fired complaint and who investigated 

the shooting in various ways.

¶17 Turning to the issues related to Desmond, the State called a detective 

who recounted Desmond’s statements on the night of the shooting. The detective 

testified that Desmond told him he watched three children—Pearson and Serena’s

young daughter and Christine and Aaron’s two children—while the four adults 

went to the tavern. When the adults arrived home, Desmond took the kids into the 

kitchen, away from the adults. He returned to the front when he heard Serena 

scream and he saw Christine and Pearson physically fighting. Desmond and 

Serena broke up the fight when it spilled outside in front of the house. He 
No. 2021AP1709-CR

8

observed Pearson open the trunk of the black Honda and retrieve the gun safe. 

Desmond then closed the door, leaving Pearson outside.

¶18 The detective’s testimony continued, stating that Desmond 

recounted that the moment after shutting the door, Desmond heard shots being

fired and he thought that Pearson was the shooter because Pearson was alone 

outside at the time of the shooting. Desmond told the detective that Pearson had 

shown him the gun safe and the guns about a week earlier. During crossexamination, the detective clarified that Desmond did not claim he could see 

Pearson open the safe, he did not know what was in the safe the night of the 

shooting, he could not see into the trunk, and that he did not claim to see Pearson 

shoot.

¶19 The State then called the detective who both was part of the 

investigation of the shooting and who reviewed Pearson’s jail calls. He testified 

that Pearson and Serena had many phone calls: in some she used a pseudonym, 

but the detective could recognize her voice; in some they discussed financial 

matters; and in some they discussed the case. The detective also reviewed calls 

between Sondra and Pearson, and specifically discussed the call in which Pearson 

asked Sondra to reach out to Uncle David, who is Desmond’s father, to try to talk 

Desmond into saving Pearson’s life. The State played the recorded call while the 

detective was on the witness stand. The State also played a call in which Pearson 

stated that it was Serena and Desmond’s statements that would hurt him, not 

Christine and Aaron’s statements, as he originally thought.

¶20 The jury returned guilty verdicts on all five counts against Pearson 

on September 20, 2019. In November 2019, the trial court imposed an overall 

term of sentence of twenty two years, six months, divided as twelve years six 
No. 2021AP1709-CR

9

months of initial confinement and ten years of extended supervision, with 

consecutive and concurrent sentences imposed on the various counts.

¶21 Pearson now appeals.

DISCUSSION

¶22 Pearson argues that the trial court erred when it granted the State’s 

motion to admit Desmond’s out-of-court statements under the doctrine of 

forfeiture by wrongdoing. Pearson argues that the State failed to satisfy the 

prerequisites of the doctrine, arguing that the State failed to prove that Desmond 

was unavailable to testify, or to prove that Pearson was the cause of Desmond’s 

failure to appear because there was no evidence to suggest that Desmond was 

aware that Pearson was concerned about his testimony.

¶23 Although the trial court’s decision to admit evidence is ordinarily 

within its discretion, we independently review whether the admission of an out-ofcourt statement violates a defendant’s Confrontation Clause right. State v. 

Reinwand, 2019 WI 25, ¶17, 385 Wis. 2d 700, 924 N.W.2d 184.3 We accept the 

trial court’s findings of fact unless they are clearly erroneous. State v. Baldwin, 

2010 WI App 162, ¶30, 330 Wis. 2d 500, 794 N.W.2d 769. “A trial court properly 

exercises its discretion when the record shows it ‘examined the relevant facts, 

applied a proper standard of law, and, using a demonstrated rational process, 

 

3

 It appears undisputed that Desmond’s statement to police was testimonial. “Statements 

taken by police officers in the course of interrogations are also testimonial under even a narrow 

standard.” Crawford v. Washington, 541 U.S. 36, 52 (2004). Desmond’s statement was taken at 

a crime scene, not in a custodial interrogation interview. Nonetheless, we will consider the 

statement to be testimonial for the purpose of our analysis. 
No. 2021AP1709-CR

10

reached a conclusion that a reasonable judge could reach.’” Id., ¶31 (citation and 

one set of quotation marks omitted).

¶24 The Confrontation Clause of the Sixth Amendment to the United 

States Constitution states that “[i]n all criminal prosecutions, the accused shall 

enjoy the right ... to be confronted with the witnesses against him[.]” U.S. CONST.

amend. VI; see also WIS. CONST. art. I, § 7; Reinwand, 385 Wis. 2d 700, ¶19. An 

exception from the protections of the Confrontation Clause is “forfeiture by 

wrongdoing, which permit[s] the introduction of statements of a [declarant] who 

was detained or kept away by the means or procurement of the defendant.” 

Baldwin, 330 Wis. 2d 500, ¶34 (citations omitted and internal quotation marks 

omitted; second set of brackets in Baldwin).

¶25 The forfeiture by wrongdoing exception is “applied only when the 

defendant engaged in conduct designed to prevent the witness from testifying.” 

Giles v. California, 554 U.S. 353, 359 (2008). In our analysis to determine the 

application of the doctrine, we consider two prongs. The first prong is whether the 

witness is “unavailable” pursuant to WIS. STAT. § 908.04, and whether the 

proponent of the testimony made a good faith effort and exercised due diligence to 

secure the witness’s presence, see Baldwin, 330 Wis. 2d 500, ¶48. The second 

prong is whether the defendant was the substantial cause of the witness’s 

unavailability, see State v. Rodriguez, 2007 WI App 252, ¶15, 306 Wis. 2d 129, 

743 N.W.2d 460, and whether the defendant intended to prevent the witness from 

testifying, see Giles, 554 U.S. at 359. The State bears the burden to prove by a 

preponderance of the evidence that forfeiture by wrongdoing doctrine applies. 

Baldwin, 330 Wis. 2d 500, ¶37.
No. 2021AP1709-CR

11

¶26 We begin with unavailability. It is undisputed that Desmond did not 

show for trial. The State asserts that it attempted with due diligence and good 

faith efforts to have Desmond appear through use of the process server and 

subpoena. This complies with WIS. STAT. § 908.04(1)(e). However, Pearson 

argues that the State’s efforts were insufficient and lacked due diligence. He 

contends that the State failed to provide testimony from the process server who 

had personal knowledge of the service attempts and that it was insufficient to rely 

upon the victim/witness advocate’s testimony. However, as the State points out, 

there is no requirement that the process server testify in court. Pearson provides 

no legal authority to compel the process service to testify and we decline to 

develop such an argument for him. See State v. Pettit, 171 Wis. 2d 627, 646-47, 

492 N.W.2d 633 (Ct. App. 1992).

¶27 Further, Pearson argues that Desmond was not unavailable because 

the State failed to prove that the residence used by the process server was 

Desmond’s actual address. Pearson contends that Desmond’s former attorney’s 

testimony only supported that Desmond used that address for a mailing address, 

not that he resided there and could be found there. Pearson argues that Desmond’s 

purported grandmother did not claim he lived at that address, merely that he was 

there from time to time. We reject this argument because Pearson offers no 

evidence that Desmond does not live at his legal mailing address and instead only 

speculates about other addresses.

¶28 Pearson argues that the State did not present any evidence of any 

search for Desmond, other than the three attempts at service at the same place. 

Pearson objects that the State did not employ an arrest warrant or body attachment 

to find Desmond. However, we have rejected this argument previously and 

Pearson offers no legal authority for his contention that a body attachment is 
No. 2021AP1709-CR

12

needed to show due diligence. See Baldwin, 330 Wis. 2d 500, ¶47. Pearson also 

argues that the State’s efforts were insufficient because it only attempted to serve 

Desmond ten days prior to trial—a trial date that was known for two and a half 

months before trial. We reject this argument as well. There is no evidence in the 

record that suggests that additional notice would have impacted Desmond’s

availability.

¶29 We conclude that the State made a good faith effort and acted with 

due diligence to secure Desmond’s presence in court. The record reflects that the 

State’s process server made three attempts at an address Desmond used for legal 

purposes. The people answering the door did not give an alternative address for 

Desmond. The third attempt may have been to Desmond himself, but the person 

matching his description refused to identify himself or sign for the subpoena. 

Accordingly, we conclude that the trial court’s conclusions that the State proved 

the first prong by a preponderance of evidence are not an erroneous exercise of 

discretion and its findings are not clearly erroneous.

¶30 Turning to the second prong of the forfeiture analysis, we must 

consider whether Pearson was the cause of Desmond’s unavailability and that his 

actions were intended to prevent Desmond’s testimony.4 Pearson argues that the 

 

4

 As a threshold issue, the State argues that Pearson conceded this part of the analysis in 

the motion hearing. The record reflects that Pearson’s trial counsel stated, “I believe element two 

has been met. If they don’t show up, then this is allowed in. If they do show up, then it’s 

moot[.]” Pearson disputes any concession, stating that in the same hearing, trial counsel argued 

that the only record of Desmond’s reaction to Pearson’s calls to Serena and Sondra was that 

Uncle David relayed that he could not make Desmond do anything. Trial counsel further argued 

that Desmond was an “independent thinker” and that the State failed to show that Pearson’s 

actions had any effect on Desmond’s availability. We conclude that even if Pearson did not 

concede the causation part of the analysis, there is sufficient evidence in the record regarding 

whether Pearson caused Desmond not to appear. Therefore, we will decide this claim on the 

merits and not on the issue of whether or not he conceded or forfeited the claim.
No. 2021AP1709-CR

13

State failed to show that he caused Desmond not to appear because there is no 

evidence in the record that Desmond was aware that Pearson was worried about 

Desmond’s testimony and further, no evidence that Desmond was affected by 

Pearson’s concern. Pearson argues that instead, the evidence supports a 

reasonable inference that Desmond was an independent thinker who was free from 

Pearson’s influence.

¶31 The State argues that the voluminous phone calls from Pearson to 

Serena and Sondra showed Pearson’s intent to prevent Desmond from testifying. 

The detective who reviewed Pearson’s jail calls stated that Pearson described 

Desmond’s testimony as “killing him.” The detective’s testimony showed 

Pearson’s repeated attempts to have his wife or his daughter reach Desmond 

directly or to reach Pearson’s brother who could then reach Desmond. The record 

reflects that Pearson asked Sondra to contact her uncle and “tell him to convince 

his son to spare [Pearson’s] life.” Pearson told Sondra that “D” had seen Pearson 

“do it” referring to the shooting. Pearson told Serena that he was afraid Desmond 

would testify against him. Our inquiry here focuses on the intent behind Pearson’s 

actions. We conclude that Pearson’s phone calls showed the requisite intent to 

prevent Desmond from testifying.

¶32 Finally, the State argues that when we analyze causation under the 

forfeiture analysis, there need not be threats or violence to satisfy the inquiry. The 

trial court is allowed to draw reasonable inferences from the facts in the record. 

The record reflects a large number of calls and pressure from Pearson to Serena 

and Sondra with a recurring focus on preventing Desmond from testifying. The 

trial court’s conclusion that Pearson’s conduct was the cause of Desmond’s

unavailability at trial was a reasonable inference from the facts in the record. 

Accordingly, we conclude that the trial court’s conclusions that the State proved 
No. 2021AP1709-CR

14

the second prong by a preponderance of evidence are not an erroneous exercise of 

discretion and its findings are not clearly erroneous.

¶33 We conclude that the trial court’s decision to admit Desmond’s 

statements under the doctrine of forfeiture by wrongdoing was a reasonable 

exercise of discretion. The court considered the relevant facts of Desmond’s nonappearance at trial, the State’s efforts to serve him with a subpoena to appear, and 

Pearson’s concerted telephonic efforts to prevent Desmond from testifying. The 

trial court considered the proper standard of law for forfeiture by wrongdoing and 

demonstrated rational decision-making when it reached its conclusion. See id., 

¶31. Therefore, we reject Pearson’s claim that the trial court erred when it 

admitted Desmond’s statements.

¶34 Further, we conclude there has been no violation of Pearson’s rights 

under the Confrontation Clause. Pearson forfeited, by his own misconduct, his 

right to confront Desmond. See Rodriguez, 306 Wis. 2d 129, ¶¶17-18.

CONCLUSION

¶35 For the reasons stated above, we conclude that the trial court’s 

decision to admit Desmond’s out-of-court statement against Pearson was not an 

erroneous exercise of discretion and did not violate his rights under the 

Confrontation Clause.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.