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State v. Rivera

Court of Appeals of Wisconsin, District I

April 30, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Alberto E. Rivera, Defendant-Appellant.

         Not recommended for publication in the official reports.

          APPEAL from a judgment of the circuit court for Milwaukee County, No. 2015CF1640 JEFFREY A. WAGNER, Judge.

          Before Brennan, Brash and Dugan, JJ.

          DUGAN, J.

         ¶1 Alberto E. Rivera appeals from a judgment of conviction, entered on a jury verdict, of being a felon in possession of a firearm as a repeater; first-degree intentional homicide with use of a dangerous weapon, as a party to a crime and as a repeater; attempted first-degree intentional homicide with use of a dangerous weapon, as a party to a crime and as a repeater; and two counts of armed robbery with use of force as a party to a crime and as a repeater.[1]

         ¶2 Rivera argues that the trial court's admission of other acts evidence was prejudicial error.[2] He further argues that there was insufficient evidence for the jury to convict him of first-degree intentional homicide with use of a dangerous weapon, as a party to a crime; and, attempted first-degree intentional homicide with use of a dangerous weapon, as a party to a crime. We disagree and, therefore, affirm.

         BACKGROUND

         ¶3 During the evening of April 8, 2015, in an alley near 1300 South 56th Street in West Allis, Henry Hodges was shot and killed, and his girlfriend Beth was shot in both hands and a bullet grazed her head.[3] Both Hodges and Beth were shot in Hodges' Chevrolet Tahoe.

         ¶4 On April 16, 2015, Rivera was charged with being a felon in possession of a firearm. On September 3, 2015, Rivera was charged with first-degree intentional homicide with use of a dangerous weapon, as a party to a crime; and attempted first-degree intentional homicide with use of a dangerous weapon, as a party to a crime.

         ¶5 On November 9, 2015, the State filed a motion to introduce other acts evidence regarding other crimes Rivera committed in 1997 which resulted in his conviction in Milwaukee County case No. 1997CF971820 for a charge of felony murder with the underlying crime being attempted armed robbery, as a party to a crime. The State intended to use the evidence as it related to Rivera's identity, modus operandi, intent, motive, and opportunity. Rivera opposed the motion. The trial court heard oral argument and in a written decision, it denied the motion "with the caveat that the State [could] seek to admit that evidence on rebuttal if the defense put[] on affirmative evidence to challenge motive, intent, modus operandi or identity."

         ¶6 At the final pretrial conference, trial counsel read the following excerpt from the trial court's decision:

Should the defendant put on a defense that directly contests the issue of motive, intent, modus operandi or identity, then the issues … will become heightened.
Should that occur, then the probative value of the other acts will also be heightened, and then the danger of unfair prejudice may not substantially outweigh that probative value.
Thus the [c]ourt leaves open the possibility that the other acts evidence may be admissible on rebuttal, but advises the parties that the defense will have to directly challenge these issues in its case in chief for the [c]ourt to allow the other evidence on rebuttal.

         The trial court then indicated that the parties would not know what was going to occur until the defense's case in chief. The State then said that it "would have to get leave of the [c]ourt before doing anything." Trial counsel then stated that "we'll cross that bridge … this is the issue that has been previously litigated and may continue to be an issue during the trial."

         ¶7 The matter proceeded to a four-day jury trial. In its opening statement, the State stated that the testimony and evidence would show that Rivera shot Hodges and Beth. Trial counsel told the jury that the issue in the case was who did the shooting. In other words, it was an "identification case."

         The State's case in chief

         ¶8 Beth testified that at approximately 7:30 p.m. on April 8, 2015, Hodges picked her up in his Tahoe. They were going to get something to eat. Hodges then received a call from Rivera. Hodges said that they needed to stop at Rivera's apartment. Beth had met Rivera five or six times and had been to his apartment near 76th Street and Capitol Drive in Milwaukee.

         ¶9 When they arrived at Rivera's apartment, Hodges went into Rivera's apartment and Beth waited in the Tahoe. After approximately ten or fifteen minutes, a person walked from the apartment building to the Tahoe. Beth expected the person to be Hodges. However, Rivera appeared at the front passenger side door and told Beth to look under the driver's seat. Beth bent down to look under the seat and saw nothing. When Beth sat up, she saw Rivera pointing a gun with a laser sight at her head. Rivera told Beth to move to the third row seat area of the Tahoe and to keep her head down. Beth moved to the third row on the passenger side and put her head down with her arms crossed near her forehead. Rivera then sat in the second row area on the passenger side with the gun on his lap. Rivera positioned himself so he could see what was going on in the back and he could see Beth. Beth was directly behind Rivera. Beth saw an African-American male enter the driver's seat and drive behind Rivera's apartment building. Rivera then made a phone call and said, "bring him down."

         ¶10 Soon after, Beth saw Hodges being pushed into the second row area of the Tahoe. Although she did not get a good look at Hodges, she knew that his mouth was covered and he could not walk on his own. Rivera asked Hodges multiple times, "[W]here is the money?" Hodges replied that he did not have any money. Rivera then demanded that they go to Hodges' house to prove that he "didn't have no money there."

         ¶11 About ten minutes later, the Tahoe arrived at Hodges' house at 35th Street and Greenfield Avenue, and parked in back. A car pulled up along the passenger side of the Tahoe where Rivera was sitting and a "third voice [said] something about they don't have the keys." Rivera said that they had to go back to his apartment to get the keys.

         ¶12 After a short drive, the Tahoe stopped again. "[Rivera] told [Hodges], let me holler at Ra Ra real quick." Then the door on Beth's side of the Tahoe where Rivera had been sitting opened. Beth heard two shots originating from the second row area where Rivera was seated.

         ¶13 Beth testified that after the first two shots were fired it felt "like somebody [was] over [her] head." Then she felt someone in the second row seat reach over that seat toward her. Beth heard a shot, followed by a pause, a second shot, and then the door closed. After about two or three minutes, Beth felt blood running down her head and she was "[t]rying to figure out if [she] got shot in [her] head. [She was] [t]rying to see if [Hodges] was fine. [Hodges] did not move when [she] called his name."

         ¶14 Beth got out of the Tahoe, ran to a nearby house, and the occupant called 911. The police arrived and transported Beth to the hospital, where she was treated for gunshot wounds to both of her hands and a bullet graze to her head. On the way to the hospital, Beth told the police that Rivera was the shooter.

         ¶15 Beth was shown a photograph of Rivera and she identified him as the shooter with 100% certainty. Four months after the shooting, Beth identified Rivera as the shooter in a lineup.

         ¶16 Hodges was shot in the head and the left knee. Both bullets passed through his body. The medical examiner estimated that the gun used to shoot Hodges discharged from a distance of about "a few inches to maybe a foot" from Hodges' head. Hodges' hands and legs had been bound with extension cords, and duct tape covered his mouth.

         ¶17 Wisconsin State Crime Laboratory fingerprint examiners obtained a fingerprint from a cardboard tape roll that the police found in Rivera's kitchen and determined that the fingerprint belonged to Levell Drew.[4] The police showed Beth a photo array that included Drew's photo, but she did not identify Drew as being involved in the incident.

         Rivera's ...


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