COURT OF APPEALS

DECISION

DATED AND FILED

May 12, 2020

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. 2019AP270-CR Cir. Ct. No. 2016CF3925

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

KIEUTA Z. PERRY, JR.,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee

County: T. CHRISTOPHER DEE, Judge. Affirmed. 

Before Dugan, Fitzpatrick and Donald, JJ.

¶1 FITZPATRICK, J. Kieuta Z. Perry, Jr. appeals a judgment of 

conviction, following a jury trial, for armed robbery and first-degree recklessly 

endangering safety, both as a party to a crime. See WIS. STAT. §§ 943.32(2),
No. 2019AP270-CR

2

941.30(1), and 939.05 (2017-18).

1 At trial, Perry requested that the trial court 

grant a mistrial after a witness made a statement, unprompted, concerning a prior 

act allegedly committed by Perry. The trial court denied Perry’s motion. On 

appeal, Perry contends that the trial court erroneously exercised its discretion in 

denying his mistrial motion. Perry asks this court to reverse the trial court’s ruling

on his motion for a mistrial and his judgment of conviction, and to remand this

matter for a new trial. We conclude that Perry has failed to show that the trial 

court erroneously exercised its discretion. Therefore, we affirm Perry’s 

conviction. 

BACKGROUND

¶2 The following facts are undisputed for purposes of this appeal.

¶3 Perry was charged with one count each of armed robbery, as a party 

to a crime, first-degree recklessly endangering the safety of another with the use of 

a dangerous weapon, as a party to a crime, and possession of a firearm by a felon. 

The charges against Perry arose from an incident in which M.R. was robbed at 

gunpoint on the evening of May 25, 2016, and gunshots were fired in the direction 

of M.R.’s son, I.G.

I. Pertinent Trial Testimony.

¶4 At trial, there was testimony from lay witnesses, testimony from 

witnesses who participated in the subsequent police investigation, and testimony 

from Perry. We now summarize pertinent testimony from each.

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2019AP270-CR

3

A. Testimony From Lay Witnesses.

¶5 M.R. testified to the following. On the evening of May 25, 2016, 

M.R., two friends, and a child were exiting a vehicle in the area of South 21st 

Street in Milwaukee when a man came up to M.R. and pointed a gun at her head. 

A second man was, according to M.R., “backing [] up” the man with the gun.2 

The man with the gun demanded that M.R. give him the keys to her vehicle. The 

same man grabbed M.R.’s purse and “took off.” One of M.R.’s friends yelled to 

I.G. for help. I.G. then approached the two men and asked, “what are you doing?” 

M.R. then heard gun shots. 

¶6 A.R. was with M.R. on the evening of May 25, 2016, when M.R. 

was robbed. A.R. testified to the following. Two men exited a truck and Perry 

“put a gun against [M.R.’s] head” and “asked for the keys to the [vehicle].” The 

men were wearing hoods and “[t]hey had the draw strings tight,” but A.R. “could 

see their faces.” 

¶7 I.G. testified to the following. On the evening of May 25, 2016, I.G. 

was approximately five houses away from M.R. when he heard her scream his 

name. I.G. then began running toward M.R. I.G. saw two men: Perry, who was 

holding a gun; and another man who was holding a purse. As I.G. ran toward 

Perry and the other man, Perry shot in I.G.’s direction “five, six times.” After the 

gunshots were fired, Perry and the other man left the scene in a brown truck. 

¶8 I.G. also testified about a photo array in which he identified Perry. 

On direct examination, I.G. testified that the photo array was conducted three to 

 

2

 The identity of the second man was not testified to at trial and is not relevant to this 

appeal. 
No. 2019AP270-CR

4

five days after the robbery, but I.G. acknowledged on cross-examination that the 

photo array was conducted “several months” after the robbery. In response to a 

question by Perry’s trial counsel on whether it was “the entire face ... that helped 

[I.G.] identify [Perry]? Or was it some feature of his?” I.G. answered, “It was just 

his face, his height.” Then, unprompted, I.G. stated: “Didn’t he shoot somebody 

in the head before he shot me? That’s what I heard.” 

B. Testimony From Witnesses Who Participated in the 

Subsequent Police Investigation.

¶9 City of Milwaukee Police Department Detective Kenton Burtch, 

who arrested Perry for the May 25th crimes, testified to the following. At the time 

of his arrest, Perry was in possession of a key fob that corresponded to a car 

parked outside a residence on 28th Street in Milwaukee. On the day of Perry’s 

arrest, law enforcement officers were given consent to search that 28th Street 

residence for evidence relating to the robbery, and a Ruger SR9c model, 

9 millimeter handgun was found at the 28th Street residence. 

¶10 City of Milwaukee Police Detective Tony Castro testified to the 

following. I.G. was shown a photo array, and I.G. identified Perry in the photo 

array as the man who shot the gun at him. I.G. told Detective Castro that I.G. “had 

seen the full face of the shooter.” When Detective Castro asked I.G. to explain 

why he was confident in his identification of Perry, I.G. stated that “it was 

everything, the whole face” and that “the eyes ... struck him the most.” Detective 

Castro also testified that Perry admitted to officers that he had been at the 

28th Street residence previously. 
No. 2019AP270-CR

5

¶11 City of Milwaukee Police Detective Thomas Obregon testified that 

four spent bullet casings were recovered from the scene of the robbery. Those 

bullet casings were later tested at the Wisconsin State Crime Laboratory. 

¶12 Xai Xiong, a firearms and tool mark examiner with the Wisconsin 

State Crime Lab, testified that the four spent bullet casings recovered from the 

robbery scene were fired from the Ruger SR9c found at the 28th Street residence. 

C. Perry’s Testimony.

¶13 Perry testified and denied that he was near the area where the 

robbery occurred on May 25, 2016. Perry admitted to knowing an individual who 

lives at the 28th Street residence. Perry testified that he had been to that residence 

“occasionally to play basketball,” including at the time he was arrested in June 

2016, but Perry denied that he was ever inside the residence. At the time of his 

arrest, Perry was in possession of a vehicle key fob, but Perry testified that he had 

been “holding [the key fob] for somebody” and did not know what vehicle the key 

fob was connected with. 

II. Procedural History.

¶14 To repeat, during I.G.’s cross-examination, I.G. stated, unprompted: 

“Didn’t [Perry] shoot somebody in the head before he shot me? That’s what I

heard.” Perry’s trial counsel immediately objected and requested that I.G.’s 

statement be stricken from the record.3 The trial court ordered I.G.’s statement

 

3

 The State does not dispute on appeal, and did not dispute at trial, that the unprompted 

statement by I.G. was not responsive to a pending question, and the jury was properly instructed 

to disregard that comment. 

(continued)
No. 2019AP270-CR

6

“stricken from the record.” That is somewhat of a misnomer because, of course, 

I.G.’s statement was, and is, in the trial record. But, more importantly for this 

appeal, the trial court immediately directed the jury “to disregard that comment.” 

¶15 Later on that same day of the trial, Perry’s trial counsel requested a 

mistrial based on I.G.’s statement. His counsel argued: 

I don’t believe that there’s any way that I can 

remedy the jury hearing [I.G.’s statement], even though we 

told the jury to disregard it. They heard it. You cannot 

disregard something you hear, even though the court says 

to. And there’s no way I can remedy it without going into 

many issues that would be improper. 

¶16 The trial court denied Perry’s request and gave the following 

reasons: 

At this point it’s one stray comment by one witness, 

very brief, [that] didn’t go into any details or long winded 

narrative. 

I will give an instruction, and [the] jurors will be 

commanded to put that out of their minds. 

Even now, I may change my mind if something like 

that happens again, I realize the [S]tate did not elicit that 

response, no one elicited that response, he just blurted it out 

on his own. 

With the one stray, short comment from one 

witness, I think we’re fine for now. 

I will give an instruction, we’ll talk about a proper 

instruction, when the time comes, for now we’ll continue 

on. 

 

Going forward, we will refer to I.G.’s improper statement that gave rise to the motion for 

a mistrial as “I.G.’s statement.” 
No. 2019AP270-CR

7

¶17 At the conclusion of the evidence, the trial court proposed reading to 

the jury the standard instruction on stricken testimony. See WIS JI—

CRIMINAL 150. In response, Perry’s trial counsel stated that he was “not sure that 

[the instruction] covers sufficiently what transpired,” but acknowledged that the 

“instruction is the only one really available without causing more harm.” With the 

other jury instructions, the trial court read to the jury WIS JI—CRIMINAL 150

which states: “During the trial the court ordered certain testimony to be stricken. 

Disregard all stricken testimony. It is not to be considered in your deliberations.” 

¶18 The jury found Perry guilty of armed robbery, as a party to a crime, 

and first-degree recklessly endangering safety, as a party to a crime. The jury 

found Perry not guilty of the charge of felon in possession of a firearm, and the 

jury did not find that the first-degree recklessly endangering safety crime was 

committed with a dangerous weapon as the State charged. 

¶19 Following the jury’s verdict, but prior to sentencing, a person who 

the parties agree was a juror at Perry’s trial wrote a letter to the trial court. The 

specifics of that letter will be discussed later in this opinion. The trial court shared 

the juror’s letter with counsel for the State and Perry’s trial counsel. 

¶20 Perry’s trial counsel made a second request for a mistrial prior to the 

sentencing, and that request was denied. The matter proceeded to sentencing. 

DISCUSSION

¶21 Below we set forth our standard of review and the legal principles

governing a motion for a mistrial. We then address the parties’ arguments. 
No. 2019AP270-CR

8

I. Standard of Review and Governing Legal Principles.

¶22 A motion for a mistrial is committed to the sound discretion of the 

trial court. State v. Bunch, 191 Wis. 2d 501, 506, 529 N.W.2d 923 (Ct. App. 

1995). We reverse a trial court’s ruling on such a motion only if there is a “clear 

showing of an erroneous exercise of discretion.” Id. “A trial court properly 

exercises its discretion when it has examined the relevant facts, applied the proper 

standard of law, and engaged in a rational decision-making process.” Id. at 506-

07.

¶23 On appeal, we are obliged to independently review the record, and 

we must uphold the trial court’s discretionary determination if the record provides 

a basis for the trial court’s decision. See State v. Pharr, 115 Wis. 2d 334, 343, 

340 N.W.2d 498 (1983). Additionally, when reviewing a trial court’s ruling on a 

motion for mistrial, we accord the court’s ruling differing levels of deference. See 

Bunch, 191 Wis. 2d at 507. The levels of deference depend on the reasons 

underlying the mistrial request. See id. When, as is the case here, a mistrial

request is based “on grounds not related to the State’s alleged laxness or 

overreaching, we give the trial court’s ruling ‘great deference.’” Id. (citation

omitted). 

¶24 When ruling on a motion for a mistrial, “[t]he trial court must 

determine, in light of the whole proceeding, whether the basis for the mistrial 

request is sufficiently prejudicial to warrant a new trial.” Id. at 506. Not all 

problems require granting of a mistrial, and “the law prefers less drastic 

alternatives, if available and practical.” See id. at 512. 
No. 2019AP270-CR

9

II. The Trial Court Did Not Erroneously Exercise Its Discretion.

A. Forfeiture of Arguments.

¶25 Perry argues, initially, that the trial court erroneously exercised its 

discretion in denying his first motion for a mistrial because the trial court failed to 

consider certain factors.

4

¶26 First, Perry asserts that “the trial court failed to consider the nature 

of the underlying allegations” against Perry and, as a result, the court did not 

appreciate that I.G.’s statement was improper “prejudicial character or propensity 

evidence” under WIS. STAT. § 904.04(2). Second, Perry contends that the trial 

court should have considered the “legal elements” of the charged crimes and, 

because the trial court did not, that “bias[ed] the jury’s ability to fairly consider the

State’s case.” Third, Perry argues that, given the felon in possession of a firearm 

charge against Perry, the trial court failed to consider “direct evidence” that Perry 

was already a felon and, as a result, the jury was “primed” to attach more 

significance to I.G.’s statement. Fourth, Perry asserts that the trial court “should 

have also considered the evidentiary picture” and, because the trial court did not 

do so, the court did not recognize the weakness of the State’s case and the 

increased risk that I.G.’s statement caused the jury to find him guilty. 

¶27 We begin our analysis by rejecting any contention from Perry that 

the trial court was unaware of, or failed to consider, the following: the underlying 

charges against Perry, including the felon in possession of a firearm charge; the 

 

4

 Perry appeals only the trial court’s denial of the first motion for a mistrial.

Accordingly, we do not address whether the trial court erroneously exercised its discretion in 

denying his second motion for a mistrial. See State v. Allen, 2004 WI 106, ¶26 n.8, 274 Wis. 2d 

568, 682 N.W.2d 433 (stating an issue not argued is forfeited).
No. 2019AP270-CR

10

elements of those charged crimes; and the evidence elicited at trial. The trial court 

presided over the trial and was undoubtedly aware of those facts.

¶28 Moreover, Perry has forfeited the opportunity to raise these 

arguments on appeal because Perry’s trial counsel did not ask the trial court to 

draw any inferences or conclusions from the facts mentioned in the immediately 

preceding paragraph. Perry does not dispute the assertion of the State in its 

response brief that the arguments summarized in ¶26, above, were not raised 

before the trial court. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 

99 (Ct. App. 1994) (stating that a proposition asserted by a respondent on appeal 

and not disputed by the appellant’s reply brief may be taken as admitted). Also, it 

is a well-established legal principle that a defendant cannot complain on appeal 

that the trial court failed to consider an argument that the defendant did not ask the 

trial court to consider. See State v. Huebner, 2000 WI 59, ¶11-12, 235 Wis. 2d 

486, 611 N.W.2d 727; State v. Robles, 157 Wis. 2d 55, 59-60, 458 N.W.2d 818 

(Ct. App. 1990). 

¶29 Perry contends that there was no forfeiture in this circumstance 

because it is not required “to have every single word written in an appellate brief 

to be first spoken aloud by the trial counsel at the time of the motion” to avoid a 

forfeiture argument. That is correct as far as it goes, but Perry misses the mark 

with his assertion. This is not a situation in which Perry’s trial counsel worded an 

argument in the trial court somewhat differently than the same argument in Perry’s 

appellate briefing. Here, the arguments described above that Perry makes on 

appeal were not made at all in the trial court. The trial court did not have an 

obligation to make, sua sponte, arguments Perry now asserts the trial court should 

have considered. See State v. Delgado, 2002 WI App 38, ¶12, 250 Wis. 2d 689, 

641 N.W.2d 490. Put another way, the trial court’s role in addressing Perry’s 
No. 2019AP270-CR

11

motion for a mistrial did not require the trial court to state for Perry every possible 

argument in support of Perry’s position.5 

¶30 Accordingly, the trial court did not erroneously exercise its 

discretion by failing to consider arguments Perry makes for the first time on 

appeal, and those arguments are forfeited. See Segall v. Hurwitz, 114 Wis. 2d 

471, 489, 339 N.W.2d 333 (Ct. App. 1983) (refusing to address issues on appeal 

that were not raised before the circuit court).

B. The Curative Jury Instruction Was Not Insufficient.

¶31 Perry next argues that the trial court erroneously exercised its 

discretion because the curative instruction directing the jury to disregard I.G.’s 

statement was insufficient to erase the possible prejudice from that statement. 

Perry concedes that Wisconsin law prefers less drastic alternatives to a mistrial. 

See Bunch, 191 Wis. 2d at 512. Nonetheless, Perry asserts that a curative 

instruction in this instance was not sufficient to “fully cure[]” the prejudice 

resulting from I.G.’s statement. 

¶32 We begin with the presumption that the jury follows instructions 

given to it by the trial court. See State v. Pharm, 2000 WI App 167, ¶31, 238 Wis. 

2d 97, 617 N.W.2d 163; State v. Deer, 125 Wis. 2d 357, 364, 372 N.W.2d 176 

(Ct. App. 1985). We reject Perry’s efforts to overcome that presumption.

 

5

 Perry argues further that we should not conclude that he has forfeited those arguments 

because, according to Perry, an ineffective assistance of counsel claim against his trial counsel 

would be “impractical, unworkable, and superfluous.” But, Perry gives no basis for that assertion 

other than his conclusory statement, and we reject his unsupported argument. See State v. Pettit, 

171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (stating we do not consider unsupported 

arguments).
No. 2019AP270-CR

12

¶33 In an attempt to demonstrate that the jury considered I.G.’s 

statement in spite of the trial court’s instruction, Perry relies on the juror’s posttrial letter to the court. Perry argues that the letter is “suggestive evidence” that 

the jurors ignored the trial court’s curative instruction. The State responds that we 

may not consider the letter because of WIS. STAT. § 906.06(2). We agree with the 

State for the following reasons.

¶34 The juror’s letter states in relevant part:

I was a member of the jury for the ... trial in which we 

found Mr. Perry guilty on two of the three charges he was 

facing. That jury experience and our decision has troubled 

me ever since and has caused me to question the jury and 

trial process. In hindsight, our decision made no sense. To 

have found Mr. Perry guilty of Counts 1 and 2 ... and not

guilty of Count 3 resulted from what amounted to a 

compromise. 

Five jurors felt there was reasonable doubt while a 

number of jurors felt they could never find him not guilty. 

I’m embarrassed to say it wasn’t even obvious to me at the 

time what we were doing. To appease the individuals who 

were never going to consider a finding of not guilty, the 

jurors felt they could “live with” the verdict of guilty but 

without the weapon enhancer charge. The logic behind this 

is senseless and I believe we found Mr. Perry guilty 

erroneously based on the evidence we were presented. 

The main factor was [I.G.’s] testimony and 

identification of Mr. Perry as the person who shot at him. 

For the jury to find Mr. Perry guilty of recklessly 

endangering safety ... but not be the individual holding the 

gun, reflects our faulty logic. If we trusted [I.G’s] 

testimony, then we should not have difficulty putting the 

gun in Mr. Perry’s hand. Since some jurors struggled to 

come to the conclusion that Mr. Perry fired the gun, in 

essence, a compromise was made. 

I also wonder how much implicit bias played in our 

decision making. Since Mr. Perry had a prior felony 

conviction, the gaps in the information we were given with 

which to determine his fate, led many to assume he was just 
No. 2019AP270-CR

13

a “bad dude” so while the evidence was not all that strong, 

it was “good enough” to find a young, black male who had 

been in previous trouble, guilty once again. [I.G.’s] 

comment at the end of his testimony that he heard 

Mr. Perry had previously tried to shoot someone in the 

head may also have had an impact on some. Though we 

only briefly discussed it and knew it was to be disregarded, 

once such a statement is planted, can it truly be erased from 

biases one may unknowingly hold?

¶35 WISCONSIN STAT. § 906.06(2) provides:

Upon an inquiry into the validity of a verdict or 

indictment, a juror may not testify as to any matter or 

statement occurring during the course of the jury’s 

deliberations or to the effect of anything upon the juror’s or 

any other juror’s mind or emotions as influencing the juror 

to assent to or dissent from the verdict or indictment or 

concerning the juror’s mental processes in connection 

therewith, except that a juror may testify on the question 

whether extraneous prejudicial information was improperly 

brought to the jury’s attention or whether any outside 

influence was improperly brought to bear upon any juror. 

Nor may the juror’s affidavit or evidence of any statement 

by the juror concerning a matter about which the juror 

would be precluded from testifying be received.

¶36 There is no question that, as phrased in WIS. STAT. § 906.06(2), the

juror’s letter concerned “the juror’s mental processes” that influenced “the juror to 

assent or dissent from the verdict.” Indeed, that is the explicit reason Perry cites to 

the letter, and Perry gives us no viable reason not to apply that statute. 

Consequently, § 906.06(2) applies to this circumstance and prohibits us from 

considering the juror’s letter. 

¶37 Next, Perry relies on the jury’s verdict in an attempt to demonstrate 

that the jury did not follow the trial court’s curative instruction to disregard I.G.’s 

statement. Perry argues that the jury’s findings that he was not guilty of being a 

felon in possession of a weapon but guilty of the remaining charges is not logical 
No. 2019AP270-CR

14

because the State presented only evidence that Perry was the gunman. Perry 

asserts that a “reasonable supposition” is that I.G.’s statement “distorted [the 

jury’s] verdict.” However, as pointed out by the State, logical consistency in the 

verdict is not required in multi-count criminal verdicts. State v. Mills, 62 Wis. 2d 

186, 191, 214 N.W.2d 456 (1974) (stating “[i]t has been universally held that 

logical consistency in the verdict as between the several counts in a criminal 

information is not required”). Furthermore, Perry’s argument is, at best, 

speculative of what the jury did or considered in its deliberations, and this court 

need not address speculative arguments. See State v. Tarantino, 157 Wis. 2d 199, 

217, 458 N.W.2d 582 (Ct. App. 1990).

¶38 For those reasons, we reject Perry’s arguments that the trial court’s 

curative instruction was insufficient.

C. The Trial Court’s Decision Was Reasonable.

¶39 As noted earlier, when reviewing a trial court’s decision denying a 

defendant’s motion for a mistrial, the question before us is whether no reasonable 

court could have determined that, in the light of the entire proceeding, the 

pertinent event is not sufficiently prejudicial to warrant a new trial. See State v. 

Jeske, 197 Wis. 2d 905, 912-13, 541 N.W.2d 225 (Ct. App. 1995); Bunch, 191 

Wis. 2d at 506. It is not enough that a reasonable judge could have concluded 

differently than the trial court did here. See Jeske, 197 Wis. 2d at 912-13.

¶40 I.G.’s statement was made once on the second day of three days of 

testimony. Perry acknowledges that I.G.’s statement was not elicited by the 

prosecution but was, instead, “blurted” out by I.G. unprompted and that, at Perry’s 

trial counsel’s request, immediately after the statement was made, the trial court 

ordered the jury “to disregard that comment.” I.G.’s statement was not repeated,
No. 2019AP270-CR

15

and what he said did not directly relate to any other evidence at trial. At the end of 

trial, the jury was given the standard jury instruction for stricken testimony, which 

directs the jury to “[d]isregard all stricken testimony. It is not to be considered in 

your deliberations.” See WIS JI—CRIMINAL 150. That jury instruction did not, at 

the request of Perry’s trial counsel, mention I.G.’s statement and, as previously 

stated, the jury is presumed to have followed that instruction. See Deer, 125 Wis. 

2d at 364. 

¶41 Furthermore, the evidence, which we now summarize, supported the 

jury’s findings of guilt regardless of I.G.’s statement. I.G. identified Perry as one 

of the robbers and as the man who fired gunshots at him. The jury heard

testimony from M.R. that a man holding a gun assisted in stealing her purse and 

fired gunshots, and testimony from A.R. identifying Perry as one of the robbers. 

In addition, the jury heard testimony that spent bullet casings recovered from the 

scene of the robbery were fired from a gun that was found at a residence that Perry 

admitted to officers that he frequented. That evidence was sufficient for the jury 

to find Perry guilty of armed robbery and first-degree recklessly endangering 

safety, both as a party to a crime. See WIS. STAT. §§ 943.32(2), 941.30(1), 939.05.

¶42 Under these circumstances, we are unable to conclude that “no 

reasonable judge, acting on the same facts and underlying law, could reach the 

same conclusion” as the trial court did. See Jeske, 197 Wis. 2d at 913. 

Accordingly, the trial court did not erroneously exercise its discretion when it 

denied Perry’s motion for a mistrial. 

CONCLUSION

¶43 For the foregoing reasons, the judgment of the trial court is affirmed.
No. 2019AP270-CR

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By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.