### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2019AP270

- CR Cir. Ct. No. 2016CF3925 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
K IEUTA Z. P ERRY , J R .,
D EFENDANT - A PPELLANT .

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 W IS

. S TAT

. §§ 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
g unpoint 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 t estimony from lay witnesses, testimony from witnesses who participated in the subs equent 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

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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 wi th 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 , “ wh at 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 fi red, 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

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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 Partici pated in the

Subsequent Police Investigation

. ¶ 9 City of Milwaukee Police Department Detective Kenton Burtch , who arrested Perry for the May 25 th crimes, testified to the following. At the time
of hi s arrest, Perry was in possession of a key fob that corresponded to a car parked outside a residence on 28 th Street in Milwaukee . On the day of Perry’s arrest, law enforcement officers were given consent to search th at 28 th Street residence for evidence relating to the robbery , and a Ruger SR9c model , 9 mi llimeter handgun was found at the 28 th Street residence.

¶ 10 City of M ilwaukee 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

. ” W hen Detective Castro asked I.G. to explain why he was confident in his identification of Perr y, 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
28 th Street residence previously

.No. 2019AP270

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5 ¶ 11 City of Milw aukee 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 to ol 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 28 th Street residence

.
C. Perry’s Testimony.

¶ 13 Perry testifi ed and denied that he was near the area where the robbery occurred on Ma y 25, 2016. Perry admitted to knowing an individual who
lives at the 28 th 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 testifi ed 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 order ed I.G.’s statement

3 The State does no t dispute on appeal, and did not dispute at trial, tha t 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 statemen t was, and is, in the trial record. But, more importantly for this appeal, the trial court immediately directed the jury “to disregard th at comment.”

¶ 15 Later on t hat same day of the trial , Perry’s trial counsel requested a
mistrial bas ed on I.G.’s statement. His counsel argued:

I don’t belie ve 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 mind s. 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 th ink we’re fine for now. I will give an instruction, we’ll talk about a proper instruction, w hen 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

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7 ¶ 17 At the conclusion of the evidence , the trial court proposed reading to the jury the standard instruction on stricken testimony

. See W IS JI

— C RIMINAL 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, t he trial court read to the jury W IS JI

— C RIMINAL 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 a rmed robbery, as a party to a crime,
and first

- degree recklessly endangering safety, as a party to a crime

. T he 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 endan gering 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 counse l 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 th at 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 mistria l . 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). W e rev erse a trial court’s ruling on such a motion only if there is a “clear showing of an erroneous exercise of discretion

. ” I d. “ 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 determinatio n 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

overrea ching, we give the trial court’s ruling ‘great deference.’ ” I d. ( 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

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9 I I. The Trial Court Did Not Erroneo usly 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 “ th e trial court failed to consider the natur e 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 W IS

. S TAT

. § 904.04(2). Second, Perry contends that the trial

cour t should have consider ed 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 consider ed 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 r isk that I.G.’s statement caused the jury to find him guilty.

¶ 27 We begin our analysis by reject ing any contention from Perry that the trial court was unaware of, or failed to consider, the following: the underlying charges against Perr y, 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 h is 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

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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 f orfeited the opportunity to raise these arguments on appeal because Perry’s trial counsel did not ask the trial court to draw any inference s or conclusions from the facts mentioned in the immediately preceding paragraph. Perry does not dispute the asserti on 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. 199 4 ) (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, i t 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 circu mstance 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 ma rk
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. T he 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’sNo. 2019AP270

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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 erron eously 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 d isregard I.G.’s
statement was insufficient to erase the possible prejudice f rom 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 W e 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 b e “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

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12 ¶ 33 In an attempt t o demonstrate that the jury considered I.G.’s

statement in spite of the trial court’s instruction , Perry relies on the juror’s post

trial letter to the court. Perry argues that the letter is “suggestive evidence” that the jurors ignored the trial court’s curative instr uction. The State responds that we may not consider the letter because of W IS

. S TAT

. § 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 th e ... tria l in which we found Mr. Perry guilty on two of the three charges he w as facing. That jury experience and our decision has troubled
me eve r since and has caused me to question the jury and trial process. In hindsight, our decision ma de 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 w asn’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 b ehind 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 guil ty 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 th e 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 deter mine his fate, led many to assume he was justNo. 2019AP270

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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 th at 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 ma y unknowingly hold?
¶ 35 W ISCONSIN S TAT

. § 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 occurrin g during the course of the jury’ s deliberations or to the ef

fect 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 testif y 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 up on any juror. Nor may the juror’ s affidavit or evidence of any statement by the ju ror concerning a matter about which the juror would be precluded from testifying be received.
¶ 36 There is no question that , as phrased in W IS

. S TAT

. § 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 fin ding s that he was n ot guilty of being a
f elon in possession of a weapon but guilty of the remaining charges is not logicalNo. 2019AP270

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14 because the State presented only evidence that Perry was the gunman. Perry asserts that a “reasonable supposition ” is that I.G.’s st atement “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 univer sally 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

ne ed not address speculative arguments

. See State v. Tara n tino , 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 W as 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 entir e 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 acknowledg e s that I.G.’s statement was not elicited by the prosecution but was , inste ad , “blurted” out by I.G. unprompted and that , at Perry’s
trial counsel’s request, i mmediately after the statement was made , the trial court ordered the jury “to disregard that comm ent .” I .G.’s statement was not repeated ,No. 2019AP270

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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 W IS JI

— C RIMI NAL 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

. T he jury heard testimony from M.R. that a man holding a gun assisted in stealing her purse and fired gunshot s , 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 fou nd 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 W IS

. S TAT

. §§ 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.
A ccordingly, 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

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16 By the Court

. — Judgment a ffirmed

.

Not r ecommended for publication in the official reports.