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Abuse of Discretion – Expert Testimony

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Johnnie Lee Tucker

Case No.: 2017AP840-CR

Officials: Kessler, P.J., Brennan and Dugan, JJ.

Focus: Abuse of Discretion – Expert Testimony

Johnnie Lee Tucker appeals a judgment of conviction for one count of first-degree intentional homicide and one count of possession of a firearm by a felon. A jury convicted Tucker of both counts arising from a fatal shooting outside of a Milwaukee tavern. The victim, Colin Alexander, had lived with Tucker’s ex-girlfriend and Tucker’s son for about nine years. Four days before Alexander’s death, Tucker had filed a petition for a restraining order against Alexander in order to keep Alexander away from his son.

At trial, the evidence included video from several of the tavern’s interior and exterior security cameras. When the videos were shown to the jury, a detective testified about how the night vision cameras inside of the dark tavern distorted colors and how the multiple camera angles made it hard to piece together the video footage to track the movement of various people who were seen inside and outside of the crowded tavern at the time of the shooting. After explaining that he had reviewed the footage “many times[,]” the detective testified that the person who was seen on camera outside of the tavern scuffling with the victim and then shooting him was the same person who a few moments before could be seen walking into and then exiting from the tavern.

Tucker argues on appeal that the trial court erred in allowing the detective’s testimony as lay opinion testimony pursuant to WIS. STAT. § 907.01 (2015-16). Tucker states that “the detective identified Mr. Tucker, seen in the video the detective was viewing as just entering the tavern, as ‘the shooter outside’” (emphasis added). He argues that the detective “had insufficient personal knowledge to enable him to identify Mr. Tucker,” and that “when the officer, who knew Mr. Tucker only from the video he was viewing, identified Mr. Tucker as ‘the shooter outside,’ he ‘usurped the jury’s function’” (emphasis added).

Tucker mischaracterizes the testimony in question. There is absolutely no support in the record for the assertion that the detective identified Tucker as the shooter. The detective testified that the person seen inside of the tavern was the “suspect” or the “subject” who walked outside of the tavern and shot the victim. The testimony, which was followed by a cautionary instruction by the trial court, merely concerned the movements of the shooter inside and outside of the tavern but never identified the shooter as Tucker. Because Tucker’s legal arguments are premised on a misstatement of the facts—that a law enforcement officer’s testimony identified the accused as the guilty person to the jury—they are unpersuasive. We conclude that the trial court properly admitted the detective’s testimony under WIS. STAT. § 907.01. We therefore affirm.

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at or contact them at 262-737-8825.

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