COURT OF APPEALS

DECISION

DATED AND FILED

August 13, 2024

Samuel A. Christensen

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 Nos. 2023AP332-CR

2023AP333-CR

Cir. Ct. Nos. 2015CF5586

2016CF1726

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DIMITRI L. MOSS,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for 

Milwaukee County: CYNTHIA M. DAVIS and MICHELLE A. HAVAS, Judges. 

Affirmed. 

Before Donald, P.J., Geenen and Colón, 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). 
Nos. 2023AP332-CR

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2

¶1 PER CURIAM. Dimitri L. Moss appeals his judgments of 

conviction and the order of the circuit court denying his motion for postconviction 

relief without a hearing.

1

 He argues that the prosecutor engaged in misconduct, his 

trial counsel was ineffective for failing to object to that misconduct, and he is 

entitled to a new trial or, alternatively, a Machner2 hearing. We disagree with Moss 

and affirm.

BACKGROUND

¶2 One evening in December 2015, T.B.3 was sitting in her vehicle with 

a friend when Moss pulled next to them in his vehicle. T.B. had recently ended her 

long-term romantic relationship with Moss. T.B. became fearful and drove to the 

police station, and Moss followed her. At the police station, Moss parked next to 

T.B., pointed a gun at her car, and demanded that she and her friend exit her vehicle. 

Her friend exited and departed, but T.B. refused. T.B. eventually agreed to follow 

Moss to a different location, where T.B. stopped at a gas station and parked in front 

of the convenience store hoping to draw attention to Moss. Moss parked next to 

T.B., again drew his gun, and ordered T.B. to exit. T.B. accelerated trying to escape, 

and as she took off, Moss fired his gun, hitting T.B.’s vehicle.

¶3 T.B. drove to a nearby bar, exited her car, and called a friend. A 

security guard overheard T.B. explaining to her friend what had happened and called 

 

1

 The Honorable Cynthia M. Davis presided over Moss’s trial. The Honorable Michelle 

A. Havas considered and denied Moss’s postconviction motion. Both are referred to as the “circuit 

court.”

2

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

3

 We use initials to refer to the victim in this case “to better protect the privacy and dignity 

interests of crime victims.” WIS. STAT. RULE 809.86(1) (2021-22).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
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the police. Moss arrived and tried to drag T.B. into his vehicle, but she resisted. 

T.B. left in her car, and Moss followed beside her in his vehicle.

¶4 Detective Michael Martin came upon Moss and T.B. driving side-byside while on patrol in his squad car. He identified the two vehicles from a radio 

report as having been involved in an incident, and coupled with Moss’s erratic 

driving, Detective Martin decided to stop Moss’s vehicle. Moss fled. 

¶5 Detective Martin pursued Moss for five miles before disengaging the 

chase, but moments later, he found Moss’s vehicle crashed at a nearby intersection. 

Moss was lying outside the open driver’s door in the street, and Detective Martin 

found a revolver on the floor of the vehicle’s front passenger seat with three bullets 

in the chamber, and three spent shell casings. Moss’s DNA was later detected on 

the revolver’s handle and cylinder. The State charged Moss with being a felon in 

possession of a firearm, endangering safety by use of a dangerous weapon, firstdegree recklessly endangering safety by use of a dangerous weapon, and fleeing an 

officer, all with a habitual criminality repeater. 

¶6 Moss was held in custody prior to trial. He frequently communicated 

with T.B. by phone and by letter, but two phone calls caught the attention of police. 

The first call occurred on February 28, 2016. Investigator Paul Bratonja identified 

two concerning excerpts in the call. In the first excerpt, Moss told T.B. to “[s]tay 

far away from that shit,” referring to his criminal proceedings. As Moss described 

the plan: “no face, no case.” In the second excerpt, Moss directed T.B. to go to his 

“PO” (i.e., probation officer) and ensure that the PO dropped Moss’s probation 

“hold” once the charges in the present case were dropped. 

¶7 The second call occurred on April 6, 2016. Moss instructed T.B. to 

prepare a letter recanting her accusations, sign it, and have it notarized. Later that 
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day, T.B. delivered a notarized letter recanting her accusations to the District 

Attorney’s Office. The State charged Moss in a second case with two counts of 

felony intimidation of a witness as a repeater, and the complaint transcribed the 

relevant excerpts from both calls. 

¶8 The two cases were consolidated for trial, and T.B. testified 

consistently with the foregoing facts. She did not recant, and she explained that she 

falsely recanted only because she feared adverse consequences from Moss if she 

testified. Detective Martin, the DNA analyst who tested the revolver, and 

Investigator Bratonja also testified. The State presented additional evidence that 

corroborated T.B.’s testimony, including surveillance footage from the gas station 

and the bar, photographs of the bullet damage sustained by T.B.’s car, and a letter 

from Moss to T.B. written while he was in pretrial custody asking for her “loyalty” 

and hoping that she would not “make any unforgivable decisions.” 

¶9 Outside the presence of the jury, the State announced its plan to play 

the February 28 and April 6 calls. The prosecutor reminded the circuit court and 

Moss that the State had transcribed the parts that would be played in the complaint. 

When asked whether he objected to the February 28 call “referenced in the criminal 

complaint,” Moss’s counsel replied, “I don’t see that I have a basis to object to that.” 

Moss objected only to certain portions of the April 6 call in which he discussed 

finishing his term of probation. The prosecutor agreed to redact those parts. At 

trial, Investigator Bratonja introduced and authenticated the calls by explaining how 

the Milwaukee County Jail phone system operates. All calls are recorded, and each 

inmate uses the booking number assigned upon entry as his or her PIN in the phone 

system. Each call generates a call log documenting the number called, the date and 

time of the call, and the inmate caller’s PIN. Referring to the call logs for the 

February 28 and April 6 calls, Investigator Bratonja confirmed that Moss called T.B.
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¶10 The prosecutor played the first excerpt from the February 28 call 

without incident, but shortly after the second excerpt from the same call started 

playing, Moss objected. The parties agree that, at most, the jury heard Moss 

say: “If—if you—if you get a chance to talk to my—If you get a chance to talk to 

my PO, or whatever, she should drop the hold before I go to court, or whatever.” 

The parties disputed whether the excerpt stopped after the word “PO” or “hold.” 

¶11 Moss moved for a mistrial, arguing that this second excerpt was 

inadmissible because it referred to his probation and that the prosecutor engaged in 

misconduct because the prosecutor had agreed to redact any such references from 

both calls. The prosecutor asserted that he had not intended to present evidence of 

Moss’s probation status. He stated that he did not know that the call mentioned a 

“PO” because he had not listened to the call in a while. He noted that he had paused 

the call as soon as he heard “objection,” and that any delay arose from an 

unavoidable lag in the courtroom audio software. He also argued that the second 

part of the February 28 call was admissible. 

¶12 The circuit court denied the motion for a mistrial. It ruled that the 

second excerpt from the February 28 call was inadmissible but that the prosecutor 

did not engage in misconduct by playing it. It found that the prosecutor acted in 

good faith because Moss had previously consented to its admissibility by objecting

only to the April 6 call. Because the prosecutor acted in good faith, he did not 

engage in misconduct. The circuit court was uncertain if the jury heard the call all 

the way to “hold,” but even if it had, Moss suffered only minor prejudice that did 

not justify a mistrial. The jurors might not have understood that “PO” and “hold” 

referred to probation. The jury already knew that Moss had been in pretrial custody 

because he made these calls from jail, and it also already knew Moss had a criminal 

history because the parties stipulated to his prior felony conviction. 
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¶13 The circuit court offered to issue a cautionary instruction, but Moss 

declined and instead requested that the circuit court simply announce “objection 

sustained” when the jury returned, and the circuit court granted this relief. The jury 

found Moss guilty of all but one of the charges, acquitting him only of witness 

intimidation for the April 6 phone call. The circuit court sentenced Moss to an 

aggregate prison term of seventeen and one-half years of initial confinement and 

fourteen years of extended supervision. 

¶14 Moss filed motions for postconviction relief in both of his cases. He 

renewed his claim of prosecutorial misconduct and his motion for a mistrial, and he 

raised an additional claim of ineffective assistance of counsel. He argued that trial 

counsel was ineffective for not objecting to the second part of the February 28 call 

before it was played at trial, and for not objecting to repeated references to Moss’s 

custodial status and status as a convicted felon in both trial testimony and the 

prosecutor’s closing argument.

¶15 The circuit court denied these claims without a hearing. Moss appeals

from both judgments of conviction and the order denying his postconviction motion, 

reiterating his arguments that the prosecutor engaged in misconduct, that his trial 

counsel was ineffective for failing to object to that misconduct, and that he is entitled 

to a new trial or, alternatively, a Machner hearing. 

DISCUSSION

I. The circuit court reasonably exercised its discretion in finding that 

the prosecutor acted in good faith, and any misconduct was harmless.

¶16 Moss argues that the prosecutor engaged in misconduct by playing the 

second half of the February 28 call and by making and eliciting testimony that made

references to Moss’s custodial status and that he was a convicted felon.
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¶17 “Prosecutorial misconduct ‘can rise to such a level that the defendant 

is denied his or her due process right to a fair trial.’” State v. Lettice, 205 Wis. 2d 

347, 352, 556 N.W.2d 376 (Ct. App. 1996) (citation omitted). However, reversing 

a conviction on the basis of prosecutorial misconduct is a “drastic step,” State v. 

Ruiz, 118 Wis. 2d 177, 202, 347 N.W.2d 352 (1984), and is reserved for cases where 

the misconduct “poison[ed] the entire atmosphere of the trial,” Lettice, 205 Wis. 2d 

at 352 (citation omitted). “The determination of whether prosecutorial misconduct 

occurred and whether such conduct requires a new trial is within the [circuit] court’s 

discretion.” Id. We will sustain a discretionary act if the circuit court “‘examined 

the relevant facts, applied a proper standard of law, and used a rational process to 

reach a conclusion that a reasonable judge could reach.’” Id. (citation omitted). 

Even when misconduct occurs, reversal is not warranted if the State proves beyond 

a reasonable doubt that the error was harmless. State v. Stietz, 2017 WI 58, ¶63, 

375 Wis. 2d 572, 895 N.W.2d 796; see also State v. Patterson, 2010 WI 130, ¶64, 

329 Wis. 2d 599, 790 N.W.2d 909. Whether an error is harmless presents a question 

of law that we review de novo. State v. Hunt, 2014 WI 102, ¶21, 360 Wis. 2d 576, 

851 N.W.2d 434.

¶18 Here, the circuit court did not erroneously exercise its discretion when 

it determined that the prosecutor acted in good faith and no misconduct occurred. 

The circuit court noted that although the parties had previously discussed excluding 

information related to Moss’s probationary status, defense counsel had objected 

only to the transcript of the April 6 call and did not specifically object to the second 

part of the February 28 call. The record reflects that the prosecutor promptly paused 

the call after Moss objected, even if a small portion of the call continued to play 

after the prosecutor hit pause. Given these circumstances, we conclude that the 
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circuit court did not clearly err in finding that the prosecutor acted in good faith and 

no misconduct occurred.

¶19 Moreover, we conclude that any prejudice that Moss might have 

suffered as a result of the playing of the second half of the February 28 call was 

harmless. An error is harmless if it is clear beyond a reasonable doubt that the jury 

would still have found the defendant guilty absent the error. State v. Mayo, 2007 

WI 78, ¶47, 301 Wis. 2d 642, 734 N.W.2d 115. Factors relevant to this analysis 

include the importance of any erroneously admitted evidence and the overall 

strength of the State’s case. Id., ¶48.

¶20 We conclude that the second part of the February 28 call mentioning 

Moss’s probation could not have plausibly influenced the jury’s verdict. As the 

circuit court correctly noted, the excerpt only obliquely referred to Moss’s probation 

status through the words “PO” and “hold,” words that the jurors may not have even 

understood. The rest of the excerpt is unremarkable, and the jury ultimately knew 

from the stipulation and other evidence that Moss had made the calls while 

incarcerated and had a prior felony conviction.

¶21 On the other hand, there was substantial evidence of Moss’s guilt. 

T.B. gave detailed testimony about how Moss harassed her and shot at her car, 

which was corroborated by surveillance footage. Police saw Moss in his vehicle 

driving next to T.B.’s vehicle, and when police signaled for Moss to stop, he fled 

and instigated a chase. When police later found Moss after he crashed his car, a 

partially loaded revolver was found on the front passenger seat floor. Three bullets 

had been fired, and Moss’s DNA was identified on the handle and cylinder. 

Moreover, Moss’s letter to T.B. asking for her “loyalty” and the first part of the 

February 28 call where he told T.B. to disregard her subpoena to testify in his 
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criminal proceedings revealed Moss’s consciousness of guilt. We conclude that any 

error related to the playing of the second excerpt of the February 28 call was 

harmless beyond a reasonable doubt.

¶22 Moss also complains that the prosecutor engaged in misconduct by 

eliciting testimony and directly referencing Moss’s custodial status and his prior 

felony conviction.

¶23 The prosecutor and Investigator Bratonja used words like “jail,” 

“booking number,” and “inmate” in order to discuss the Milwaukee County Jail’s 

phone system. However, none of these references were impermissible. Using these 

words was incidental to but necessary for understanding how the Milwaukee County 

Jail’s phone system worked, and knowing how the phone system worked was 

necessary in order to establish the dates of the calls and that Moss was the speaker. 

¶24 As to the prosecutor’s references during closing argument to Moss 

being a convicted felon, “a prosecutor may comment on the evidence, argue to a 

conclusion from the evidence, and may state that the evidence convinces him or her 

and should convince the jury.” Mayo, 301 Wis. 2d 642, ¶43. This is exactly what 

the prosecutor did: he noted that one of the elements of being a felon in possession 

of a firearm is that the defendant is a “convicted felon;” he explained that Moss is a 

“convicted felon” and that this was “not a point of contention;” and he ended with 

a brief summary reiterating the elements of the crime and that Moss was a 

“convicted felon.” 

¶25 We agree with the circuit court and conclude that the prosecutor’s 

questioning of Investigator Bratonja and the statements during closing arguments 

did not constitute prosecutorial misconduct. Additionally, and for the same reasons 

set forth above, we conclude that the references were harmless. The State’s 
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evidence was overwhelmingly strong, and any prejudice that could conceivably 

arise from the challenged references was minimal. 

¶26 In sum, the circuit court’s finding that the prosecutor acted in good 

faith and no misconduct occurred was not clearly erroneous. Moreover, any 

misconduct that may have occurred, either as a result of the playing of the second 

part of the February 28 call or the references to Moss’s custodial and felon statuses, 

was harmless beyond a reasonable doubt.

II. Trial counsel was not ineffective.

¶27 In rejecting Moss’s ineffective assistance challenges without a 

hearing, the circuit court applied the two-pronged test for deficient performance and 

prejudice established in Strickland v. Washington, 466 U.S. 668, 687 (1984). 

“When a circuit court summarily denies a postconviction motion alleging 

ineffective assistance of counsel without holding a Machner hearing, the issue for 

the court of appeals ... is whether the defendant’s motion alleged sufficient facts 

entitling [the defendant] to a hearing.” State v. Sholar, 2018 WI 53, ¶51, 381 Wis. 

2d 560, 912 N.W.2d 89. However, even if the motion alleges specific facts, “an 

evidentiary hearing is not mandatory if a defendant’s motion presents only 

conclusory allegations or if the record as a whole conclusively demonstrates that the 

defendant is not entitled to relief.” State v. Ruffin, 2022 WI 34, ¶38, 401 Wis. 2d 

619, 974 N.W.2d 432. 

¶28 To establish deficient performance, the motion must specifically 

allege more than that counsel’s performance was “imperfect or less than ideal.” 

State v. Balliette, 2011 WI 79, ¶22, 336 Wis. 2d 358, 805 N.W.2d 334. There is a 

strong presumption that counsel performed reasonably, and the question is “whether 
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the attorney’s performance was reasonably effective considering all the 

circumstances.” Id., ¶¶22, 25-28.

¶29 The motion must also allege prejudice, i.e., “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. In order to 

satisfy this prong, the defendant must allege more than “that the errors had some 

conceivable effect on the outcome of the proceeding.” Id. at 693. “[R]ank 

speculation” is insufficient. State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d 

749 (1999). We need not address both prongs “if the defendant makes an 

insufficient showing on one.” Strickland, 466 U.S. at 697.

¶30 Whether a postconviction motion is sufficient on its face to require an 

evidentiary hearing and whether the record conclusively demonstrates that the 

defendant is not entitled to relief are both questions of law that we review 

independently of the circuit court while benefiting from its analysis. Ruffin, 401 

Wis. 2d 619, ¶27; Balliette, 336 Wis. 2d 358, ¶18.

¶31 Moss argues that counsel was ineffective for failing to object to the 

February 28 call and for failing to object to references to his custodial status and 

prior felony conviction. We reject Moss’s arguments because the record 

conclusively demonstrates that Moss was not prejudiced. As explained above, the 

potential prejudice stemming from the partially played second excerpt of the 

February 28 call and the references to Moss’s custodial status and prior felony 

conviction does not create a reasonable probability that the result of the trial would 

have been different but for trial counsel’s failure to object. The State’s evidence 

against Moss was overwhelming, and if any prejudice arose at all, it was de minimis. 
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Accordingly, we reject Moss’s ineffective assistance claims and conclude that he is 

not entitled to a new trial or a Machner hearing.4

CONCLUSION

¶32 We conclude that the circuit court did not clearly err in finding that 

the prosecutor did not engage in misconduct. Moreover, we conclude that even if 

misconduct occurred, and trial counsel was deficient for failing to object to it, Moss 

suffered no prejudice. We further conclude that Moss was not prejudiced by 

references to his custodial status or prior felony conviction. There is no reasonable 

probability of a different result, and the alleged errors were harmless beyond a 

reasonable doubt.

By the Court.—Judgments and order affirmed. 

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

RULE 809.23(1)(b)5.

 

4

 Moss also argues that the circuit court erroneously exercised its discretion when it denied 

his motion for a mistrial on the basis of prosecutorial misconduct. “[N]ot all errors warrant a 

mistrial,” so “[t]he [circuit] court must determine, in light of the entire proceeding, whether the 

basis for the mistrial motion is sufficiently prejudicial to warrant a new trial.” State v. Givens, 217 

Wis. 2d 180, 191, 580 N.W.2d 340 (Ct. App. 1998). As we explained, we conclude that any 

conceivable prejudice stemming from the alleged prosecutorial misconduct was harmless beyond 

a reasonable doubt, and for that reason, we conclude that the circuit court did not erroneously 

exercise its discretion when it denied Moss’s motion for a mistrial.