State v. Jimothy A. Jenkins , 355 Wis. 2d 180 ( 2014 )

2014 WI 59
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP46-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Jimothy A. Jenkins,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 346 Wis. 2d 280, 827 N.W.2d 929
(Ct. App. 2013 – Unpublished)
OPINION FILED: July 11, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 8, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Carl Ashley
JUSTICES:
CONCURRED: CROOKS, J., concurs. (Opinion filed.)
DISSENTED: ZIEGLER, GABLEMAN, JJ., dissent. Opinion filed.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Joseph E. Redding, West Allis, and oral argument by Joseph E.
Redding.
For the plaintiff-respondent, the cause was argued by Aaron
O’Neill, assistant attorney general, with whom on the brief was
J.B. Van Hollen, attorney general.
2014 WI 59
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP46-CR
(L.C. No. 2007CF1225)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 11, 2014
Jimothy A. Jenkins,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 SHIRLEY S. ABRAHAMSON, C.J. The defendant, Jimothy
A. Jenkins, seeks review of an unpublished decision of the court
of appeals affirming a judgment and order of the Circuit Court
for Milwaukee County, Carl Ashley and Rebecca F. Dallet, Judges.1
1
State v. Jenkins, No. 2012AP46-CR, unpublished slip op.
(Wis. Ct. App. Jan. 15, 2013).
The Honorable Carl Ashley entered the judgment of
conviction and imposed sentence. The Honorable Rebecca F.
Dallet entered the order denying Jenkins' postconviction motion.
No. 2012AP46-CR
¶2 A jury found the defendant guilty of one count of
first-degree intentional homicide, as a party to a crime, with
use of a dangerous weapon, contrary to Wis. Stat.
§§ 940.01(1)(a), 939.05, and 939.63 (2007-08);2 one count of
first-degree reckless injury, party to a crime, with the use of
a dangerous weapon, contrary to Wis. Stat. §§ 940.23(1)(a),
939.05, and 939.63; and one count of possession of a firearm by
a felon, contrary to Wis. Stat. § 941.29(2).
¶3 After trial, the defendant brought a postconviction
motion seeking a new trial on the grounds that he had
ineffective assistance of trial counsel and that a new trial was
required in the interest of justice.3
¶4 After an evidentiary Machner4 hearing, the circuit
court denied the defendant's postconviction motion seeking a new
trial, determining that the defendant's trial counsel was not
2
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
3
Wisconsin Stat. § 805.15(1) reads as follows:
(1) Motion. A party may move to set aside a verdict
and for a new trial because of errors in the trial, or
because the verdict is contrary to law or to the
weight of evidence, or because of excessive or
inadequate damages, or because of newly-discovered
evidence, or in the interest of justice. Motions
under this subsection may be heard as prescribed in s.
807.13. Orders granting a new trial on grounds other
than in the interest of justice, need not include a
finding that granting a new trial is also in the
interest of justice.
4
State v. Machner, 101 Wis. 2d 79, 303 N.W.2d 633 (1981).
2
No. 2012AP46-CR
ineffective and that a new trial was not required in the
interest of justice. The court of appeals affirmed the circuit
court.
¶5 The defendant raises two issues on review.
¶6 First, did the defendant receive ineffective
assistance of trial counsel when defense trial counsel failed to
present testimony at trial of potentially exculpatory witnesses,
namely an eyewitness other than the State's witness and
witnesses with evidence that another person committed the
homicide for which the defendant was convicted?
¶7 Second, did the court of appeals err in refusing to
order a new trial in the interest of justice under the court of
appeals' discretionary reversal authority pursuant to Wis. Stat.
§ 752.35?5
¶8 We address only the issue of whether the defense trial
counsel was ineffective for failing to call the eyewitness Cera
5
Wisconsin Stat. § 752.35, governing discretionary reversal
by the court of appeals, reads as follows:
Discretionary reversal. In an appeal to the court of
appeals, if it appears from the record that the real
controversy has not been fully tried, or that it is
probable that justice has for any reason miscarried,
the court may reverse the judgment or order appealed
from, regardless of whether the proper motion or
objection appears in the record and may direct the
entry of the proper judgment or remit the case to the
trial court for entry of the proper judgment or for a
new trial, and direct the making of such amendments in
the pleadings and the adoption of such procedure in
that court, not inconsistent with statutes or rules,
as are necessary to accomplish the ends of justice.
3
No. 2012AP46-CR
Jones to testify at trial. We conclude, under the totality of
the circumstances in the instant case, that the defendant has
demonstrated both prongs of the test for ineffective assistance
of counsel as articulated in Strickland v. Washington, 466 U.S.
668 (1984): trial counsel's deficient performance that did not
meet the standard of objective reasonableness, and prejudice
against the defendant that resulted from the trial counsel's
deficient performance.
¶9 Consequently, we reverse the decision of the court of
appeals and remand the cause to the circuit court for a new
trial.6
I
¶10 The facts in the instant case are undisputed for the
purposes of this appeal.
¶11 On March 23, 2007, the car in which Toy Kimber and
Anthony Weaver were traveling ran out of gas near 2100 North
38th Street in Milwaukee. Kimber lived seven blocks away on
45th Street.
¶12 After leaving the car, the two men met two young
women, one of whom was Cera Jones. Kimber admitted to buying
$10 worth of marijuana from Jones. During their conversation, a
car drove past them, made a U-turn, and drove towards the four
individuals. A man exited the car's rear seat holding a rifle.
6
We need not and do not address whether defense trial
counsel was ineffective in any other respects, and we do not
address whether the court of appeals erred in failing to
exercise its discretionary reversal authority to order a new
trial in the interest of justice.
4
No. 2012AP46-CR
He shot at Kimber and Weaver, injuring Kimber in the leg and
killing Weaver. The shooter then reentered the vehicle and the
vehicle drove away.
¶13 Immediately after the shooting, police officers talked
to both Kimber and Jones. Kimber initially told police that he
did not know the shooter. Jones initially told police that she
could not see the shooter's face because it was dark and he was
wearing a hood.
¶14 The next morning, March 24, 2007, Kimber was re-
interviewed by the police and shown a photo array, which
included the defendant. Kimber identified the defendant as the
shooter. Kimber had known the defendant for at least three
years and may have seen the defendant earlier in the evening.
¶15 Jones was re-interviewed by the police on April 1,
2007. Jones told police that she had not seen the shooter
before. She stated that the shooter had a clean-shaven baby
face and medium complexion and that he did not have acne scars.
Jones was also shown a photo array, which included the
defendant. She did not select the defendant from the array. In
a statement attached to the defendant's postconviction motion,
Jones attests that she also gave a statement that the defendant
was definitely not the shooter and that she had seen the
defendant across the street minutes after the shooting occurred.
The police report does not include these two statements.
¶16 The defendant was arrested and charged. While
awaiting trial, the defendant shared a jail pod with Corey Moore
and Christopher Blunt. According to statements and affidavits
5
No. 2012AP46-CR
in the defendant's motion for a new trial, while in jail, Blunt
recognized the defendant and admitted that he [Blunt] had
committed the shooting. Moore stated that he overheard this
conversation.
¶17 The defendant brought the conversation with Blunt to
his attorney's attention. Defense trial counsel then informed
the prosecutor in writing of Blunt's and Moore's statements.
Defense trial counsel did not further interview Blunt or Moore.
¶18 At trial, Kimber's testimony that the defendant was
the shooter was the only evidence that directly tied the
defendant to the shooting.7 Kimber testified that on the night
of the shooting, prior to being shown a photo array, he
identified the defendant as the shooter.8 On being shown the
photo array, Kimber identified the defendant. Kimber
additionally testified that there was a history of disputes
between people living around 45th Street, such as himself, and
people living around 38th Street, such as the defendant.
7
The State and the defendant each called witnesses to
testify at trial. For example, the State called various police
officers who responded to the crime scene and conducted
interviews and photo arrays. The State also called a witness
who allegedly told police that he had seen the defendant hold a
firearm similar to the one used in the shooting and a witness
who allegedly told police that she was in the defendant's
alleged alibi location and did not see the defendant. None of
these witnesses introduced evidence that directly connected the
defendant to the shooting.
8
Police officers testified that at the scene of the
shooting Kimber said he did not know who shot him.
6
No. 2012AP46-CR
¶19 In contrast, the defendant testified that he was in
the home of Daniel McFadden at the time of the shooting.
McFadden's home is across the street from the scene of the
shooting.
¶20 McFadden testified that the defendant was asleep and
that he woke the defendant when the shots were fired. On cross-
examination, McFadden also testified that immediately following
the shooting, he told police officers that he had not seen the
defendant at the time of the shooting and had last seen him
around 2 p.m. that afternoon.
¶21 The State and the defendant stipulated that Kimber had
five adult convictions and four juvenile adjudications, that the
defendant had two prior juvenile adjudications, and that
McFadden had one adult conviction and three juvenile
adjudications.
¶22 The jury convicted the defendant of the crimes
charged.
¶23 The defendant moved for a new trial in a
postconviction motion based upon both (1) ineffective assistance
of counsel for failing to investigate, subpoena, and present
witnesses who would have supported the proposition that the
defendant was not the shooter; and (2) the interest of justice.
Attached to the postconviction motion were signed statements by
Jones and Moore obtained by the defendant's postconviction
counsel's investigator and the investigator's report regarding a
conversation with Blunt.
7
No. 2012AP46-CR
¶24 The circuit court granted a Machner evidentiary
hearing.
¶25 At the Machner hearing, the parties stipulated that
Moore and Blunt would have testified similarly to the statements
they gave to the investigator. Moore's statement attests that
while sharing a jail pod, Blunt made statements to the defendant
admitting to the shooting of Kimber and Weaver. The
investigator's report about Blunt indicates that Blunt denied
making those statements and denied knowing the defendant.
¶26 At the Machner hearing, defense trial counsel
testified that his notes regarding individual witnesses had been
destroyed in a flood. He stated that his trial strategy was
twofold——attacking the credibility of the victim eyewitness,
Kimber, and providing an alibi for the defendant.
¶27 In response to questions about why he did not call
Jones as a witness, defense trial counsel testified as follows:
• He was uncertain whether he met with Jones; he could
not specifically recall whether he had met or
interviewed Jones;
• He could not recall why he did not call Jones as a
witness;
• He could not recall why or whether Jones's testimony
would have fit with the theory of the case;
• He would have read police reports detailing Jones's
testimony;
• He could not recall discussing the photo array with
Jones; and
8
No. 2012AP46-CR
• He could not recall why he did not discuss Jones's
photo array with the relevant police officer.
¶28 At the hearing, Jones testified that:
• She did not identify the defendant in the photo array;
• She told officers that the shooter had a smooth baby
face, which the defendant does not have;
• She told the officers that the defendant was not the
shooter;
• She knew the defendant from the neighborhood;
• She spoke with defense trial counsel on multiple
occasions but was not contacted afterwards or
subpoenaed to be called as a witness; and
• On the evening of the shooting, she told officers that
she could see the shooter's face before he put his
hood up.
¶29 Regarding why he did not call either Moore or Blunt as
a witness, defense trial counsel testified as follows:
• He never talked to Blunt;
• He believed that Moore would have been "credible";
• He requested that the prosecutor interview Moore;
• He could not recall whether he or his investigator
ever talked to Moore; and
• Moore's counsel told him that Moore would not testify.
¶30 The circuit court denied the motion for a new trial
both with regard to ineffective assistance of counsel and the
interest of justice.
9
No. 2012AP46-CR
¶31 The circuit court reasoned that trial counsel was not
ineffective because (1) Jones would "not come across as a
credible witness" and in any event "there is not a reasonable
probability that the result of the proceeding would have been
different,"9 and (2) the statements of other witnesses whom
defense counsel had not called at trial "would not have come in"
under hearsay rules.10
9
The circuit court stated its reasoning at the Machner
hearing as follows:
And the reasons that I think that the defense
can't meet that burden [of prejudice] is because I
think there are just way too many inconsistencies with
Miss Jones' statements and I think all of what she
testified to is frankly she just did not come across
as a credible witness. I'm going to go through those
specifics that show that I don't believe that she was
credible and I think that the jury would have had
difficulty with some of these statements as well.
. . . .
So I just think that given the contradictions in
her testimony, I don't find her credible. I think she
would have been impeached on the stand with all these
statements and her descriptions kept changing. And I
think that based on that, even if she had testified,
there is not a reasonable probability that the result
of the proceeding would have been different.
10
The circuit court stated its reasoning at the Machner
hearing as follows:
I just think in terms of a hearsay analysis at that
point, that those statements just would not have come
in in that way. We'd have an alleged statement
overheard by someone who isn't available, essentially
not testifying, not being made available by his
attorney. . . . And then to try to get in what he
supposedly heard someone else say who also is saying
he didn't say it, it really is so attenuated. I just
10
No. 2012AP46-CR
¶32 The circuit court also decided for the same reasons
that the interest of justice did not necessitate a new trial.
¶33 The court of appeals affirmed the circuit court order
denying the motion for a new trial for ineffective assistance of
counsel and denying the motion for a new trial in the interest
of justice.
II
¶34 Criminal defendants are guaranteed the right to
effective counsel by the United States and Wisconsin
Constitutions.11 The benchmark for judging any claim of
ineffective assistance of counsel is whether counsel's conduct
so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.12
¶35 Whether a defendant received ineffective assistance of
trial counsel is a two-part inquiry under Strickland v.
Washington, 466 U.S. 668 (1984).13 A defendant must show both
don't think that there is that reliability of which
hearsay statements are based on so as to allow that to
come in in that fashion.
11
U.S. Const. Amends. VI and XIV; Wis. Const. art. I, § 7.
12
State v. Domke, 2011 WI 95, ¶34, 337 Wis. 2d 268, 805
N.W.2d 364 (citing State v. Trawitzki, 2001 WI 77, ¶39, 244
Wis. 2d 523, 628 N.W.2d 801 (quoting Strickland v. Washington,
466 U.S. 668, 686 (1984))).
13
State v. Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782
N.W.2d 695 (quoting Strickland, 466 U.S. at 687).
11
No. 2012AP46-CR
(1) that counsel performed deficiently; and (2) that the
deficient performance prejudiced the defendant.14
¶36 When reviewing whether counsel performed deficiently,
the Strickland standard requires that the defendant show that
his counsel's representation fell below an objective standard of
reasonableness considering all the circumstances.15 A court is
highly deferential to the reasonableness of counsel's
performance. A court must make every effort to reconstruct the
circumstances of counsel's challenged conduct, to evaluate the
conduct from counsel's perspective at the time, and to eliminate
the distorting effects of hindsight.16 Strategic decisions made
after less than complete investigation of law and facts may
still be adjudged reasonable.17 "Just as a reviewing court
should not second guess the strategic decisions of counsel with
the benefit of hindsight, it should also not construct strategic
defense which counsel does not offer."18
¶37 Even if counsel's performance was deficient, a
defendant must also show prejudice by demonstrating that there
14
Domke, 337 Wis. 2d 268, ¶33 (citing Strickland, 466 U.S.
at 687).
15
Carter, 324 Wis. 2d 640, ¶22.
16
Id.
17
Id., ¶23.
18
Harris v. Reed, 894 F.2d 871, 878 (7th Cir. 1990)
(concluding that trial counsel was deficient for failing to
offer a strategic reason for not calling potentially exculpatory
witnesses).
12
No. 2012AP46-CR
is a reasonable probability that the errors "had an adverse
effect on the defense."19 The proper test for prejudice in the
context of ineffective assistance of counsel is whether "there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."20 The
required showing of prejudice is that "counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable."21 A defendant fails to demonstrate
prejudice if it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.22
¶38 Whether a defendant received ineffective assistance of
counsel is a mixed question of law and fact.23 This court will
uphold the circuit court's findings of fact, including the
circumstances of the case and the counsel's conduct and
19
State v. Burton, 2013 WI 61, ¶49, 349 Wis. 2d 1, 832
N.W.2d 611 (quoting Strickland, 466 U.S. at 693). See also Wis.
Stat. § 805.18 (harmless error rule, made applicable to criminal
proceedings by § 972.11(1)).
20
Burton, 349 Wis. 2d 1, ¶49 (quoting Strickland, 466 U.S.
at 693).
21
Strickland, 466 U.S. at 687.
22
State v. Weed, 2003 WI 85, ¶2, 263 Wis. 2d 434, 666
N.W.2d 485 (quoting State v. Harvey, 2002 WI 93, ¶44, 254
Wis. 2d 442, 647 N.W.2d 189).
23
Domke, 337 Wis. 2d 268, ¶33.
13
No. 2012AP46-CR
strategy, unless they are clearly erroneous.24 Whether counsel's
performance satisfies the standard for ineffective assistance of
counsel is a question of law which we determine independently of
the circuit court and court of appeals, benefiting from their
analysis.25
¶39 We turn to the arguments relating to defense trial
counsel's ineffective assistance of counsel.
III
¶40 We first address whether defense trial counsel's
representation fell below the objective standard of reasonably
effective assistance.26
¶41 Failure to call a potential witness may constitute
deficient performance. In Toliver v. Pollard, 688 F.3d 853, 862
(7th Cir. 2012), the court declared that "in a 'swearing match'
between two sides, counsel's failure to call two useful,
corroborating witnesses, despite [potential bias as a result of]
the family relationship, constitutes deficient performance."27
See also Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir.
2006) (the testimony of witnesses who would corroborate the
24
State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665
N.W.2d 305.
25
State v. Neumann, 2013 WI 58, ¶141 n.87, 348 Wis. 2d 455,
832 N.W.2d 560; Domke, 337 Wis. 2d 268, ¶33 (citing Thiel).
26
Domke, 337 Wis. 2d 268, ¶36.
27
Toliver v. Pollard, 688 F.3d 853, 862 (7th Cir. 2012)
(quoting Goodman v. Bertrand, 467 F.3d 1022, 1033 (7th Cir.
2006)).
14
No. 2012AP46-CR
defendant's account was a "crucial aspect of [the] defense");
State v. White, 2004 WI App 78, ¶¶20-21, 271 Wis. 2d 742, 680
N.W.2d 362 (trial counsel's performance was deficient for
failure to call witnesses who would have brought in evidence
that "went to the core of [the] defense.").
¶42 Defense trial counsel's deficient performance is clear
from the record. He knew of Jones. He knew she was an
eyewitness and could testify about the shooting. He knew her
statements would contradict or impeach the eyewitness upon whom
the prosecution's entire case relied, Kimber. He knew that
Jones had not identified the defendant on the night of the
shooting and that she did not identify him when she examined a
photo array.
¶43 Jones's testimony fit defense trial counsel's
professed trial strategy of discrediting and impeaching the
State's witness.
¶44 Similarly, Jones's eyewitness testimony would
corroborate the defendant's version of events and support
defense trial counsel's professed alibi defense. Jones would
have testified that she saw the defendant across the street
immediately after the shooting.
¶45 A failure to call a key witness, however, does not
always necessarily constitute deficient performance. The
failure to call a witness may have been a reasonable trial
strategy.
15
No. 2012AP46-CR
¶46 The record is devoid of any reasonable trial strategy
to support defense trial counsel's not calling Jones as a
witness at trial.
¶47 At the Machner hearing, defense trial counsel could
give no reason why he did not call Jones as a trial witness.
Indeed, defense trial counsel could not even recall having met
with Jones, let alone provide a reason for why he chose not to
call her as an witness at trial. We cannot figure out any
reasonable trial strategy.
¶48 For the reasons set forth, we conclude that defense
trial counsel's representation fell below the objective standard
of reasonably effective assistance.
IV
¶49 As noted above, once deficient performance is
established, the defendant must demonstrate that the deficient
performance was prejudicial. To demonstrate prejudice, the
defendant must show that, absent defense trial counsel's errors,
there was a reasonable probability of a different result.
¶50 Our prejudice analysis is necessarily fact-dependent.
Whether counsel's deficient performance satisfies the prejudice
prong of Strickland depends upon the totality of the
circumstances at trial.28 The circuit court and court of appeals
determined that because of inconsistencies in Jones's statements
in the initial police report, the second police report, the
postconviction motion papers, and the Machner hearing testimony,
28
Thiel, 264 Wis. 2d 571, ¶62.
16
No. 2012AP46-CR
the defendant did not demonstrate a reasonable probability that
had Jones been called as a witness the result would have been
different.29 We disagree with these courts.
¶51 Looking at the totality of the evidence in the trial,
we hold that the defendant sufficiently demonstrated a
reasonable probability that a different result would have
occurred but for the failure to call Jones.
¶52 The State's case rested almost completely on the
testimony of one eyewitness, the victim Kimber. The defense
offered no contradictory eyewitness testimony. No physical
evidence directly tied the defendant to the shooting.
¶53 In such a case, contradictory eyewitness testimony
supporting the defendant would expose vulnerabilities at the
center of the State's case. When defense trial counsel knew
about Jones and that she could contradict the prosecution's
central eyewitness testimony, the excluded contradictory
eyewitness would have contributed strongly to doubts regarding
the prosecution's case. See United States ex rel. Hampton v.
Leibach, 347 F.3d 219 (7th Cir. 2003) (concluding that failure
to call key witnesses in a case with no physical evidence was
prejudicial).
¶54 Jones's testimony also would have supported the
defendant's own testimony that the defendant was in a
29
State v. Jenkins, No. 2012AP46-CR, unpublished slip op.
¶¶15-17 (Wis. Ct. App. Jan. 15, 2013).
17
No. 2012AP46-CR
neighboring house at the time of the shooting and came out
afterwards.
¶55 Although Jones's statements were not necessarily
consistent over time, and her credibility could be challenged,
Kimber, the prosecution's key eyewitness, had similar if not
more substantial credibility problems.
¶56 The circuit court noted that Jones's description of
the shooter got "better and better as time [went] on," but the
same characterization could be applied to the statements of the
prosecution witness, Kimber, whose memory of the shooting seemed
to improve the day after the shooting. On the night of the
shooting, he told police that he could not identify the shooter.
The next morning, he affirmatively identified the defendant in a
photo array. At trial, he averred that he did actually identify
the defendant on the night of the shooting, even though the
police report and an officer's testimony contradicted him.
¶57 The court of appeals noted that Jones was inconsistent
in describing her involvement in a marijuana sale earlier in the
evening. Yet Kimber was involved in the same transaction, with
similarly inconsistent testimony.
¶58 The parties appear not to dispute that Jones's
credibility was not subject to attack by a prior criminal
conviction. Kimber, the State's key eyewitness, had nine prior
convictions or juvenile adjudications; his prior convictions may
be used to attack his credibility.30
30
See Wis. Stat. § 906.09; State v. Gary M.B., 2004 WI 33,
¶21, 270 Wis. 2d 62, 676 N.W.2d 475.
18
No. 2012AP46-CR
¶59 In the particular credibility contest in the present
case, in which
• both eyewitnesses had inconsistencies in their
statements;
• the prosecution eyewitness had an extensive criminal
record and (as far as the record shows) the defense
eyewitness had none;
• the entire basis of the prosecution's case rested on
its eyewitness identification; and
• no physical or other evidence directly tied the
defendant to the crime;
we hold that the failure to call Jones as a witness at trial to
give testimony contradictory to that of the State's eyewitness
had a reasonable probability of affecting the result of the
case.
¶60 As Strickland notes, "a verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support."
Strickland, 466 U.S. at 696.
¶61 Our conclusion that defense trial counsel's deficient
performance in the instant case was prejudicial is supported by
Washington v. Smith, 219 F.3d 620, 633-34 (7th Cir. 2000), in
which the court granted relief because defense trial counsel's
error was prejudicial in "crippl[ing]" the defendant's defense
by excluding entirely the testimony that would have most
supported the defendant's theory. The Washington court declared
that the additional witnesses themselves had weaknesses and
19
No. 2012AP46-CR
potential inconsistencies, but "the mere fact that some negative
evidence would have come in with the positive does not eliminate
the prejudicial effect of leaving corroborative evidence
unintroduced" and inconsistencies in the prosecution's own
witnesses' testimony made it more likely that the additional
corroboration of alibi witnesses would change the result of the
case.
¶62 Wisconsin case law has similarly recognized that when
a potential witness "would have added a great deal of substance
and credibility" to the defendant's theory and when the witness
"could not have been impeached as having a criminal record," the
exclusion of the witness's testimony is prejudicial, even if the
witness's credibility could be impeached. State v. Cooks, 2006
WI App 262, ¶63, 297 Wis. 2d 633, 726 N.W.2d 322.
¶63 The court of appeals in Cooks, quoting the federal
Washington case, 219 F.3d at 634, noted that "the mere fact that
some negative evidence would have come in with the positive does
not eliminate the prejudicial effect of leaving corroborative
evidence unintroduced." Cooks, 297 Wis. 2d 633, ¶63.
¶64 In assessing the prejudice caused by the defense trial
counsel's performance, i.e., the effect of the defense trial
counsel's deficient performance, a circuit court may not
substitute its judgment for that of the jury in assessing which
testimony would be more or less credible.31
31
In contrast, in a Machner hearing, a circuit court may
weigh the credibility of the witnesses, including trial counsel,
in assessing the deficiency and reasonableness of the trial
counsel's performance.
20
No. 2012AP46-CR
¶65 State v. Guerard, 2004 WI 85, 273 Wis. 2d 250, 682
N.W.2d 12, demonstrates this principle. In Guerard, the court
concluded that defense counsel in that case was deficient in
failing to call a witness. The court held that despite the
internal inconsistencies and credibility concerns regarding that
witness's testimony, defense counsel's deficient performance was
prejudicial. The perceived weaknesses in the witness's
testimony "would have been a factor for the jury to
consider . . . . The jury would have had to determine the weight
and credibility to assign" to the witness's statements.32
¶66 Taking into account all the circumstances of the case,
we conclude that defense trial counsel's performance was
prejudicial to the defendant; there is a reasonable probability
that the result of the proceeding would have been different had
defense trial counsel called Jones to testify at trial.
* * * *
¶67 We conclude, under the totality of the circumstances
in the instant case, that the defendant has demonstrated both
prongs of the test for ineffective assistance of counsel as
articulated in Strickland, 466 U.S. 668: trial counsel's
deficient performance that did not meet the standard of
objective reasonableness, and prejudice against the defendant
that resulted from the trial counsel's deficient performance.
32
State v. Guerard, 2004 WI 85, ¶¶46, 49, 273 Wis. 2d 250,
682 N.W.2d 12.
21
No. 2012AP46-CR
¶68 Consequently, we reverse the decision of the court of
appeals and remand the cause to the circuit court for a new
trial.
By the Court.—The decision of the court of appeals is
reversed and the cause is remanded for a new trial.
22
No. 2012AP46-CR.npc
¶69 N. PATRICK CROOKS, J. (concurring). Because I agree
that the defendant was denied his constitutional right to
effective assistance of counsel as a result of trial counsel's
failure to present the eyewitness testimony of Cera Jones at
trial, I join the majority opinion. However, I write separately
to provide guidance on an issue of central importance not fully
addressed by the majority in this case, namely, whether the
circuit court properly scrutinized and weighed the credibility
of Jones's testimony in applying the prejudice prong of the
ineffective assistance of counsel test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). The propriety of the
circuit court's decision in this regard presents an issue that
was both briefed and argued before us.
¶70 As correctly noted by the majority, the test for
determining whether a defendant received ineffective assistance
of counsel is two-pronged. State v. Carter, 2010 WI 40, ¶21,
324 Wis. 2d 640, 782 N.W.2d 695 (citing Strickland, 466 U.S. at
687). The first prong requires the defendant to show that trial
counsel's performance was deficient. Id. The second prong
requires the defendant to prove that trial counsel's deficient
performance prejudiced the defense. Id.
¶71 In discussing the issue of ineffective assistance, the
circuit court focused on the credibility of Jones, in regard to
the prejudice prong of the Strickland analysis, rather than on
the matter of deficient performance of the defendant's counsel.1
1
The record is clear that the circuit court made no
findings of fact——credibility or otherwise——with respect to
trial counsel's deficient performance.
1
No. 2012AP46-CR.npc
The circuit court ultimately concluded that trial counsel was
not ineffective for failing to call Jones to testify at trial.
The circuit court reasoned that, even if trial counsel's failure
to call Jones was deficient, such an unprofessional error did
not prejudice the defendant because there was not a reasonable
probability that Jones's testimony would have altered the
outcome of the trial in light of her failure to come across as a
credible witness.
¶72 The circuit court erred in discrediting Jones's
testimony for two reasons. First, the general rule in Wisconsin
is that issues of witness credibility and the weight to be given
to their testimony are matters for the jury to decide. State v.
Friedrich, 135 Wis. 2d 1, 16, 398 N.W.2d 763 (1987). Second, a
defendant attempting to establish prejudice for purposes of an
ineffective assistance of counsel claim need only show a
reasonable probability that, but for counsel's unprofessional
error, the outcome of the trial would have been different.
State v. Thiel, 2003 WI 111, ¶20, 264 Wis. 2d 571, 665 N.W.2d
305 (quoting Strickland, 466 U.S. at 694). As to the latter
point, "reasonable probability" does not mean "more likely than
not." State v. Dyess, 124 Wis. 2d 525, 544, 370 N.W.2d 222
(1985) (citing Strickland, 466 U.S. at 693).
¶73 A proper application of the above legal principles to
the facts of this case would require the circuit court to
consider the following questions in assessing whether trial
counsel's error in failing to call Jones prejudiced the
defendant: (1) Was Jones's testimony within the realm of
2
No. 2012AP46-CR.npc
believability in light of the totality of circumstances of the
case?; and (2) Was Jones's testimony materially beneficial to
the defendant's theory of the case?
¶74 Had the circuit court limited its inquiry to these
questions, it would have correctly reserved questions as to the
credibility and significance of Jones's testimony for the jury.
I.
¶75 A criminal defendant has a fundamental right to a
trial by jury guaranteed by the Sixth Amendment to the United
States Constitution and Article I, Section 7 of the Wisconsin
Constitution. State v. Anderson, 2002 WI 7, ¶10, 249 Wis. 2d
586, 638 N.W.2d 301. Consistent with this fundamental right,
Wisconsin law provides that it is ordinarily the task of a jury
to decide both the credibility of a witness and the weight to be
given to his or her testimony. Friedrich, 135 Wis. 2d at 16.
This principle is confirmed by Wis JI——Criminal 300, which
instructs,
It is the duty of the jury to scrutinize and to weigh
the testimony of witnesses and to determine the effect
of the evidence as a whole. You are the sole judges of
the credibility, that is, the believability of the
witnesses and of the weight to be given to their
testimony.
¶76 While under certain circumstances it is possible for a
circuit court to determine that a witness's testimony is
incredible as a matter of law, it must be cognizant that "[e]ven
though there be glaring discrepancies in the testimony of a
witness at trial, or between his [or her] trial testimony and
his [or her] previous statements, that fact in itself does not
3
No. 2012AP46-CR.npc
result in concluding as a matter of law that the witness is
wholly incredible." Ruiz v. State, 75 Wis. 2d 230, 232, 249
N.W.2d 277 (1977). Instead, "the question is whether the
factfinder believes one version rather than another or chooses
to disbelieve the witness altogether. Only a question of
credibility . . . is raised. That question [is] one for the
jury." Id.; see also McFowler v. Jaimet, 349 F.3d 436, 454 (7th
Cir. 2003) ("Inconsistencies in a witness's testimony are not
unusual either, and normally these are left for the factfinder
to assess."). A court should not substitute its judgment for
that of the factfinder in this regard except where the evidence
is inherently or patently incredible. Gauthier v. State, 28
Wis. 2d 412, 416, 137 N.W.2d 101 (1965), cert denied, 383 U.S.
916 (1966).
II.
¶77 The legal principle that it is normally the province
of the jury to scrutinize and weigh the testimony of witnesses
in criminal cases must apply when a circuit court is addressing
the prejudice prong of a claim for ineffective assistance. See
majority op., ¶64. Adhering to this legal principle in the
context of ineffective assistance is entirely consistent with
the test for determining prejudice set forth in Strickland.
¶78 As noted, the test for prejudice asks whether there is
a reasonable probability that, but for counsel's unprofessional
error, the result of the trial would have been different. State
v. Domke, 2011 WI 95, ¶54, 337 Wis. 2d 268, 805 N.W.2d 364
(quoting Strickland, 466 U.S. at 694). In the context of a
4
No. 2012AP46-CR.npc
criminal conviction, "'the question is whether there is a
reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.'" Id.
(quoting Strickland, 466 U.S. at 695). "'A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694).
¶79 Importantly, in order to establish prejudice, a
defendant need not show that counsel's unprofessional error more
likely than not altered the outcome of the case. Dyess, 124
Wis. 2d at 544 (citing Strickland, 466 U.S. at 693). Thus,
where a circuit court requires a defendant to convince the court
as to the believability of an uncalled witness in order to
establish prejudice, it not only ignores the role that a
factfinder typically plays in determining the guilt or innocence
of a defendant, it also imposes a heightened burden on the
defendant that was expressly considered and rejected by the
United States Supreme Court in Strickland.
¶80 Unfortunately, we have not specifically addressed the
propriety of a circuit court's decision to scrutinize and weigh
the credibility of an uncalled witness for purposes of assessing
the prejudice prong of a claim for ineffective assistance. The
result is that we have produced opinions reflecting somewhat
inconsistent views on the topic.
¶81 For example, in State v. Vennemann, 180 Wis. 2d 81,
97, 508 N.W.2d 404 (1993), we briefly addressed the issue in a
case involving a claim of ineffective assistance based on trial
counsel's failure to call a witness. Specifically, we agreed
5
No. 2012AP46-CR.npc
with the circuit court's conclusion that the outcome of the
trial would not have been different had the testimony of the
uncalled witness been presented at trial because the uncalled
witness "could have been easily impeached by other inconsistent
testimony." Id.
¶82 Conversely, in State v. Guerard, 2004 WI 85, ¶49, 273
Wis. 2d 250, 682 N.W.2d 12, another case involving a claim of
ineffective assistance based on trial counsel's failure to call
certain witnesses, we concluded that the defendant had satisfied
his burden of establishing prejudice notwithstanding the "the
strength of the victim's testimony and the existence of some
inconsistency between [the victim's] testimony and [the
exculpatory confession that was the subject of the uncalled
witness' testimony]. . . ." Although the circuit court in
Guerard had not made an explicit credibility determination with
respect to the substance of the uncalled witness' testimony, as
was the case in Vennemann, we nevertheless explained that it was
the proper role of the jury to determine the weight and
credibility to assign to the exculpatory confession at issue.
Id.
¶83 When it comes to the correctness of a circuit court's
decision to scrutinize and weigh the credibility of an uncalled
witness for purposes of assessing prejudice in the context of
ineffective assistance, Guerard provides the better approach.
That is to say, Guerard's approach is more consistent with
controlling legal principles in Wisconsin, whereas Vennemann's
approach is not. Specifically, the court's discussion in
6
No. 2012AP46-CR.npc
Vennemann does not appear to contemplate that: (1) the well-
established rule in Wisconsin is that witness credibility
determinations in criminal cases are generally reserved for the
jury;2 and (2) reasonable probability for purposes of
Strickland's prejudice prong does not require a defendant to
show that it is more likely than not that a new trial would
produce a different result.3
¶84 That Guerard provides the better approach toward
dealing with a circuit court's ability to make credibility
determinations in assessing prejudice for purposes of an
ineffective assistance claim is confirmed by the United States
Court of Appeals for the Sixth Circuit. In Ramonez v. Berghuis,
490 F.3d 482, 490 (6th Cir. 2007), the United States Court of
Appeals for the Sixth Circuit held that a state circuit court
erred in discrediting the testimony of three potential witnesses
when assessing whether trial counsel's failure to investigate
those witnesses prejudiced the defense, in violation of the
defendant's constitutional right to effective assistance of
counsel. The Ramonez court refused to defer to the circuit
court's assessment as to the lack of credibility and helpfulness
of the witnesses, reasoning in pertinent part that "our
2
See, e.g., State v. Friedrich, 135 Wis. 2d 1, 16, 398
N.W.2d 763 (1987) ("The credibility of witnesses and the weight
given to their testimony are matters left to the jury's
judgment.").
3
State v. Pitsch, 124 Wis. 2d 628, 641, 369 N.W.2d 711
(1985) (explaining that, in establishing prejudice in the
context of an ineffective assistance of counsel claim, a
defendant need not demonstrate that counsel's deficient error
more likely than not altered the outcome of the trial.).
7
No. 2012AP46-CR.npc
Constitution leaves it to the jury, not the judge, to evaluate
the credibility of witnesses in deciding a criminal defendant's
guilt or innocence." Id.
¶85 We have approved a similar approach to that of Guerard
and Ramonez in addressing the standard for a "reasonable
probability of a different outcome" in a case involving the
recantation of a witness's testimony. In State v. McCallum, 208
Wis. 2d 463, 468, 561 N.W.2d 707 (1997), we considered the
defendant's motion for a new trial based on newly discovered
evidence: the victim's recantation of her accusation of sexual
assault. In denying the defendant's motion, the circuit court
determined that the victim's recantation was less credible than
her accusation; as a result, the circuit court reasoned that the
defendant had failed to establish a reasonable probability of a
different result at a new trial. Id. at 474.
¶86 On review, we concluded that the circuit court
"employed the wrong legal standard when determining that there
was not a reasonable probability of a different outcome." Id.
at 475-76. We explained that the proper standard asked whether
there was a reasonable probability that a jury, looking at both
the accusation and the recantation, would have a reasonable
doubt respecting the defendant's guilt. Id. at 474.
Accordingly, we were troubled by the circuit court's
determination that a finding of "less credible" led to a
conclusion of "no reasonable probability of a different
8
No. 2012AP46-CR.npc
outcome," because "less credible is far from incredible." Id.
at 474-75.4
¶87 Thus, while we have not specifically addressed the
propriety of a circuit court's decision to scrutinize and weigh
the credibility of an uncalled witness for purposes of assessing
prejudice in the context of ineffective assistance, I believe
that Guerard and Ramonez are instructive in that they advocate
an approach that most clearly comports with controlling legal
principles in Wisconsin. That is to say, it is the jury's duty
to resolve questions as to the credibility and significance of
an uncalled witness's testimony. See majority op., ¶¶64-65.
III.
¶88 Because there are instances in which a circuit court
can properly determine that a witness's testimony is incredible
as a matter of law, I cannot advocate a bright-line rule wherein
a circuit court must always conclude that a defendant was
prejudiced by his or her counsel's failure to call a particular
witness at trial. Rather, the better approach is for a circuit
court to consider the following questions when evaluating
prejudice for purposes of an ineffective assistance claim: (1)
is the uncalled witness's testimony worthy of belief in light of
the totality of circumstances of the case?; and (2) is the
4
The McCallum concurrence suggested that, when faced with a
recantation and an accusation, "[t]he circuit court does not
determine which of the two statements is more credible; the
circuit court is not to act as a thirteenth juror." State v.
McCallum, 208 Wis. 2d 463, 490, 561 N.W.2d 707 (1997)
(Abrahamson, C.J., concurring).
9
No. 2012AP46-CR.npc
uncalled witness's testimony materially beneficial to the
defendant's theory of the case?
¶89 As to the former inquiry, the circuit court should
simply ask whether the uncalled witness's testimony has any
indicia of credibility in light of the evidence presented at
trial.5 In answering this question, the fact that the circuit
court may be troubled by inconsistencies in the uncalled
witness's testimony is not necessarily of any import. The
existence of inconsistencies in a witness's testimony does not
normally lead to a finding that the testimony is incredible as a
matter of law; rather, the existence of discrepancies ordinarily
creates a credibility question for the jury to resolve. Ruiz,
75 Wis. 2d at 232.
¶90 As to the latter inquiry, the circuit court should
simply consider whether the proposed testimony would be helpful
to the defendant's trial strategy such that, if the jury were to
believe the proposed testimony, it would likely have a
reasonable doubt respecting the defendant's guilt.
IV.
¶91 If the circuit court had applied the above approach to
the facts of this case, then it would have properly reserved
questions as to the credibility and the weight of Jones's
testimony for the jury to resolve.
5
This type of threshold inquiry pays tribute to the
"reasonable probability" language of the test for determining
prejudice set forth in Strickland v. Washington, 466 U.S. 668,
694 (1984), while not imposing a more heightened burden upon the
defendant than that contemplated by the United States Supreme
Court in Strickland.
10
No. 2012AP46-CR.npc
¶92 First, it is clear that Jones's eyewitness testimony
was within the realm of believability in light of the totality
of circumstances of this case.6 As the majority explains, the
only direct evidence that the state had to link the defendant to
the shooting was the eyewitness testimony of the victim, Toy
Kimber. Majority op., ¶18. As a result, the case boiled down
to a credibility determination between Kimber and the defendant.
¶93 It is important to note that Kimber originally told
police that he did not know the identity of the person who shot
him. It was not until the next morning that Kimber identified
the defendant as the shooter upon seeing the defendant's picture
in a photo array. The record reflects that Kimber had known the
defendant for at least three years and that there was a history
of disputes between people living around North 45th Street,
including Kimber, and people living around North 38th Street,
including the defendant. The record also indicates that Kimber
had five adult convictions and four juvenile adjudications and
that Kimber changed his story at trial with respect to his
identification of the shooter on the night in question.
¶94 In comparison, Jones, the only other eyewitness to the
shooting, did not have an extensive criminal record. By all
accounts, Jones appeared to be a neutral eyewitness to the
shooting. She was neither a victim of the shooting, nor was she
someone who possessed a familial or romantic relationship with
the defendant, as she testified. That there may have been
6
The circuit court never made an explicit finding that
Jones's testimony was incredible as a matter of law. See
majority op., ¶31 n.9.
11
No. 2012AP46-CR.npc
inconsistencies in Jones's testimony should not have rendered
her testimony unworthy of belief, particularly in light of
Kimber's own inconsistent statements and the fact that the state
had little evidence that directly linked the defendant to the
shooting. Questions as to the credibility and the weight to be
given to Jones's testimony should have been left for the jury to
answer.7
¶95 Second, it is evident that Jones's eyewitness
testimony was materially beneficial to the defendant's theory of
the case. The defendant's trial strategy was two-fold:
(1) attack the credibility of the victim eyewitness, Kimber; and
(2) provide an alibi for the defendant. As to the former, it is
clear that Jones's testimony would have helped undermine
Kimber's identification of the defendant as the shooter. She
would have testified that she knew the defendant from the
neighborhood and that the defendant was not the shooter. She
would have further testified that she did not identify the
defendant to police officers upon viewing a photo array and that
she told police officers the shooter had a smooth baby face, a
feature that the defendant did not possess. As to the latter,
Jones's testimony would have helped support the defendant's
alibi defense: she would have testified that she saw the
defendant across the street from the shooting minutes after the
shooting occurred, which is consistent with the defendant's
alibi theory. Thus, Jones's testimony, if believed by the jury,
7
Indeed, the State conceded this point at oral argument.
12
No. 2012AP46-CR.npc
would likely have created a reasonable doubt respecting the
defendant's guilt.
V.
¶96 Because I agree that the defendant was denied his
constitutional right to effective assistance of counsel, I join
the majority opinion. However, I write separately to fully
address the impropriety of the circuit court's decision to
scrutinize and weigh Jones's testimony in assessing prejudice
for purposes of the defendant's claim of ineffective assistance.
Because the general rule in Wisconsin is that witness
credibility determinations in criminal cases are for the jury to
decide, and because the test for establishing prejudice in the
context of ineffective assistance does not require a defendant
to establish that trial counsel's error more likely than not
altered the outcome of the case, the circuit court erred in
discrediting Jones's testimony. The circuit court's inquiry
regarding prejudice should have been limited to the following
questions: (1) was Jones's testimony within the realm of
believability in light of the totality of circumstances of the
case?; and (2) was Jones's testimony materially beneficial to
the defendant's theory of the case?
¶97 Had the circuit court limited its inquiry to the
aforementioned questions, it would have correctly reserved
questions as to the credibility and significance of Jones's
testimony for the jury.
¶98 For the reasons stated, I respectfully concur.
13
No. 2012AP46-CR.npc
14
No. 2012AP46-CR.akz
¶99 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I
respectfully dissent from the majority opinion. In my view,
Jenkins did not receive ineffective assistance of counsel in the
case at issue. Given the highly deferential standard and the
presumption in favor of finding that counsel's performance was
objectively reasonable, I conclude that counsel's performance
was neither deficient, nor was Jenkins prejudiced by counsel's
alleged failures, such that there is a "reasonable probability"
that the result of the proceeding would have been different.
Further, I conclude that Jenkins is not entitled to a new trial
in the interest of justice.1
I. ANALYSIS
¶100 "Whether a convicted defendant received ineffective
assistance of counsel is a two-part inquiry." State v. Carter,
2010 WI 40, ¶21, 324 Wis. 2d 640, 782 N.W.2d 695 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). "First,
the defendant must prove that counsel's performance was
deficient. Second, if counsel's performance was deficient, the
defendant must prove that the deficiency prejudiced the
defense." Id. A defendant "must satisfy both prongs of the
Strickland test" to succeed on a claim of ineffective assistance
of counsel. Id. I conclude that neither prong is satisfied in
the case at issue.
A. Deficient Performance
1
The majority opinion does not address whether Jenkins is
entitled to a new trial in the interest of justice because it
concludes that a new trial is warranted on grounds of
ineffective assistance of counsel.
1
No. 2012AP46-CR.akz
¶101 "To demonstrate deficient performance, the defendant
must show that his counsel's representation 'fell below an
objective standard of reasonableness' considering all the
circumstances." Carter, 324 Wis. 2d 640, ¶22 (quoting
Strickland, 466 U.S. at 688). "In evaluating the reasonableness
of counsel's performance, this court must be 'highly
deferential.'" Id. (quoting Strickland, 466 U.S. at 689).
"Counsel enjoys a 'strong presumption' that his conduct 'falls
within the wide range of reasonable professional assistance.'"
Id. (quoting Strickland, 466 U.S. at 689). "Indeed, counsel's
performance need not be perfect, nor even very good, to be
constitutionally adequate." Id. (citing State v. Thiel, 2003 WI
111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305).
¶102 This presumption of constitutional adequacy extends to
decisions of trial strategy. See Carter, 324 Wis. 2d 640, ¶23.
"Counsel's decisions in choosing a trial strategy are to be
given great deference. . . . Even decisions made with less than
a thorough investigation may be sustained if reasonable, given
the strong presumption of effective assistance and deference to
strategic decisions." State v. Balliette, 2011 WI 79, ¶26, 336
Wis. 2d 358, 805 N.W.2d 334 (citing Carter, 324 Wis. 2d 640,
¶23; Strickland, 466 U.S. at 690–91). "We must make 'every
effort . . . to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective
at the time.'" Carter, 324 Wis. 2d 640, ¶22 (quoting
Strickland, 466 U.S. at 688).
2
No. 2012AP46-CR.akz
¶103 In light of that deferential standard, counsel's
performance in the case at issue was not deficient. The
"witnesses" that counsel chose not to call, Cera Jones
("Jones"), Christopher Blunt ("Blunt"), and Corey Moore
("Moore"), were significantly compromised, would not cooperate
with counsel in his preparation of the case, and in any event,
would not necessarily have aided Jenkins' defense.2 From the
perspective of counsel at the time of trial, we must presume
that counsel concluded that these witnesses were not worth
calling. In fact, presenting these witnesses might have
detracted from the defense that counsel was putting forward.
Thus, it is speculative to conclude as the majority does that
counsel's failure to call the witnesses was deficient, as that
term is defined for purposes of ineffective assistance of
counsel.
¶104 Defense counsel's strategy at trial was simple:
present evidence that Jenkins could not have been the shooter
because he was across the street at a "trap" house at the time
of the shooting.3 In support of this strategy, counsel called
both Jenkins and Daniel McFadden ("McFadden"), a friend who
Jenkins was socializing with the night of the shooting, as
2
The majority opinion rests its conclusion of deficient
performance solely on counsel's decision not to call Jones. As
a result, the majority opinion does not address counsel's
decision not to call Blunt and Moore. Majority op., ¶9, n.6.
Because I conclude that counsel did not perform deficiently, I
address all the potential witnesses.
3
The record reflects that a "trap" house is a place for
young people to "hang out . . . smoke weed [and] drink."
3
No. 2012AP46-CR.akz
witnesses. Both Jenkins and McFadden testified that Jenkins was
asleep at the "trap" house when he was awoken by the shots. As
the majority opinion correctly notes, the prosecution had only
one witness refuting this version of events. Majority op., ¶18.
The state called Toy Kimber, a man with five adult convictions
and four juvenile adjudications, in its attempt to tie Jenkins
to the shooting. Id., ¶21.
¶105 At the time counsel was developing Jenkins' defense
strategy, the only statements in the record from Jones were her
statements to police in the days following the shooting.
According to the police reports, Jones indicated that she did
not see the shooter's face because he was wearing a hood, and
stated that she was not familiar with the place of the shooting
or the people involved. Jones had further told police that she
was not focused on the shooter, but rather, her attention was
drawn to the laser target on the victim standing in front of
her. Further, Jones initially concealed from police that she
had been involved in a drug deal just prior to the shooting, but
subsequently gave several different accounts of that drug deal.
Jones' inconsistent and less than exculpatory statements provide
a reasonable explanation for why counsel would not have believed
that Jones would assist in Jenkins' defense.
¶106 Given that these were the facts available to counsel
at the time of trial, counsel had no reason to call Jones, as
her testimony would not necessarily have bolstered Jenkins'
defense.
4
No. 2012AP46-CR.akz
¶107 The majority makes much of Jones' testimony at the
Machner hearing, wherein Jones first claimed that she had also
told police that Jenkins was definitely not the shooter. The
circuit court, however, found that Jones' testimony in this
regard was not credible. Indeed, as the trial court noted,
Jones' testimony seemed to get "better and better" as time went
on, something that ordinarily does not occur with eyewitnesses.
The circuit court detailed why Jones would be impeached and how
she was not a credible witness. The circuit court concluded,
based on Jones' own statements, that Jones was herself involved
in a drug deal that evening. As the circuit court concluded at
the Machner hearing, "there are way too many inconsistencies
with Miss Jones's statements and . . . frankly she just did not
come across as a credible witness." Majority op., ¶31 n.9.
¶108 The majority opinion fails to properly defer to the
circuit court's credibility determinations: "this court will not
exclude the circuit court's articulated assessments of
credibility and demeanor, unless they are clearly erroneous."
Carter, 324 Wis. 2d 640, ¶19 (citing Thiel, 264 Wis. 2d 571,
¶23). The circuit court was in the best position to evaluate
the witnesses and it determined that Jones' testimony is
relegated to having questionable value, at best. Under these
circumstances, it is not difficult to see why counsel would not
put Jones on the stand, even assuming he knew of her potentially
exculpatory testimony. Not calling a drug dealing witness, who
gave several inconsistent and impeachment-worthy statements to
police, does not rise to the requisite level of deficient
5
No. 2012AP46-CR.akz
performance. Simply stated, in finding counsel to be deficient,
the majority supplants the circuit court's credibility
determinations with its own credibility assessments. Typically,
we do not second-guess the circuit court's credibility
determinations, and I would not do so in the case at issue. See
Carter, 324 Wis. 2d 640, ¶19 (citing Thiel, 264 Wis. 2d 571,
¶23).
¶109 The majority also does not respect the presumption due
to counsel——that he acted reasonably. Instead, the majority
presumes that Jones is a credible, believable, game-changing
witness. The majority concludes that counsel should have known
that the jury would have believed her inconsistent, impeachable
testimony. The majority does not find it significant that, even
assuming counsel knew that Jones would testify as she did at the
Machner hearing, counsel would also have to account for Jones'
previous inconsistent statements and her involvement in a drug
deal that evening. Perhaps even more jugular is that in order
for the jury to believe Jones' testimony the jury would have to
determine that the police lied and that they failed to include
Jones' exculpatory statements in the police reports.4 To the
extent that it can be believed that counsel knew or should have
known about Jones' exculpatory testimony, counsel's performance
in not calling Jones still was not necessarily deficient.
Counsel's decision to not call Jones was just as likely a
reasoned strategy.
4
Other significant Brady implications may also arise given
the assumptions made by the majority. See Brady v. Maryland,
373 U.S. 83, 87 (1963).
6
No. 2012AP46-CR.akz
¶110 In its effort to cast counsel's performance as
deficient, the majority opinion reads as if counsel did not even
try to develop witnesses for the trial. In point of fact, the
opposite rings true. In building his trial strategy, counsel
testified at the Machner hearing that he "definitely"
interviewed Jones as a possible witness, though he could not
remember precisely how many times he spoke with her or the
substance of those conversations. Jones herself testified at
the Machner hearing that counsel had spoken with her a total of
four times, twice by phone and twice in person. The record
further reflects Jones' only known statements at the time of
trial were not exculpatory, and it was not until Jenkins'
postconviction motion that Jones was revealed as a potentially
exculpatory witness. In fact, since by all accounts counsel did
interview Jones, he likely concluded that she was either not
exculpatory or not credible. Indeed, at least two other
potentially exculpatory witnesses besides McFadden were present
at trial, but counsel chose not to call these witnesses because
he concluded that they lacked credibility. The presumption due
to counsel is virtually nonexistent in the majority opinion.
¶111 A lot can happen in two and a half years to change a
witness' testimony. The first we know of Jones' potentially
exculpatory testimony is at the Machner hearing. The Machner
hearing occurred two years and six months after Jenkins' trial.
Although counsel did not have detailed recall, as he had lost
his file in a flood, it is speculative to assume that Jones'
testimony at a trial some 30 months previous would have matched
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her statement at the Machner hearing. Again, the only
information in the police reports, which were created around the
time of the shooting two and a half years earlier, is that Jones
did not add to the defense presented. If we afford proper
deference to the circuit court, no credible evidence in this
record demonstrates that counsel knew, at the time of trial, of
Jones' potentially exculpatory testimony. If the majority were
to couple the deference due to the circuit court with the
presumption due to counsel, it would be hard pressed to conclude
that counsel was deficient.
¶112 Without presuming that counsel acted effectively, the
majority nonetheless concludes that counsel was deficient. In
so doing, the majority must speculate that counsel did not have
a good reason for not calling Jones and give virtually no weight
to the circuit court's determinations, even though that court
heard the testimony and reviewed the matter at Jenkins' Machner
hearing.
¶113 Correctly, the majority does not opine that counsel's
performance was deficient with respect to the other two
allegedly exculpatory witnesses, Blunt and Moore. According to
affidavits attached to Jenkins' motion for a new trial, Moore,
Blunt, and Jenkins all shared a jail pod after Jenkins' arrest.
Thus, had they testified, the jury would have learned that the
defendant was in jail. Jenkins argues that counsel is deficient
because while they were in jail together, Blunt allegedly
confessed to Jenkins that he was the true perpetrator of the
shooting. Moore allegedly witnessed the confession.
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No. 2012AP46-CR.akz
¶114 Although Blunt later denied having confessed, Jenkins
nonetheless argues that Moore's hearsay testimony regarding the
confession could have come in under two hearsay exceptions. See
Wis. Stat. §§ 908.01(4)(a)1, 908.04(1)(a).
¶115 The majority does not contradict the court of appeals'
conclusion that Jenkins' trial counsel was not ineffective for
deciding not to call Blunt and Moore. State v. Jenkins, No.
2012AP46-CR, unpublished slip op., ¶¶20-22 (Wis. Ct. App.
Jan. 15, 2013). I agree with the court of appeals' analysis
that counsel was not deficient for not calling Blunt or Moore.
¶116 The parties stipulated that had Blunt been called as a
witness he would have denied knowing Jenkins or anything about
the shooting. Id., ¶22. Counsel cannot be deficient for
failing to call a witness who would have added nothing to his
client's case. Id. Thus, counsel's decision not to call Blunt
as a witness was not deficient performance.
¶117 With respect to counsel's decision not to call Moore,
Jenkins conceded that because Moore was in the postconviction
phase of his own trial, Moore's attorney refused to allow him to
be interviewed or make him available to Jenkins' counsel. This
concession reveals that Jenkins' counsel was not deficient in
not calling Moore as witness. Such investigation weighs
strongly in favor of constitutionally adequate performance. See
Carter, 324 Wis. 2d 640, ¶22.
¶118 Further, at the Machner hearing counsel articulated a
reasonable strategic reason behind not putting the alleged
confession into evidence: the confession testimony was not
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No. 2012AP46-CR.akz
credible and he "didn't want to . . . put a bunch of stuff into
evidence that's gonna blow up in our face or make the jury think
we're trying to blow smoke at them." Such a decision is a
reasonable determination related to trial strategy, and not
deficient performance. See Carter, 324 Wis. 2d 640, ¶23;
Whitmore v. State, 56 Wis. 2d 706, 715, 203 N.W.2d 56 (1973)
(holding that "[a]n attorney's strategic decision based upon a
reasonable view of the facts not to call a witness is within the
realm of an independent professional judgment.").
¶119 As a practical matter, this was a difficult case for
the defense to build. Witnesses were not exactly cooperative
with counsel. Counsel was forced to secure the assistance of
Jenkins' sister to try and get witnesses to cooperate in
Jenkins' defense. In requesting an adjournment just prior to
trial, counsel averred that he had enormous problems in locating
possible witnesses and securing their cooperation. Counsel's
request for an adjournment was granted. Counsel further
testified at the Machner hearing that possible witnesses
regularly failed to show up for scheduled meetings, and that
they regularly changed their stories from one meeting to the
next, making a "multitude" of conflicting statements. All of
this speaks to counsel acting in a diligent and professional
manner under very difficult circumstances. When a witness does
not cooperate, it cannot always be said that counsel is
deficient. Here, at most, counsel failed to call a number of
witnesses who had given several contradictory statements.
Counsel was not deficient for failing to call such witnesses.
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No. 2012AP46-CR.akz
¶120 Jenkins' defense was that he was not the shooter, and
that he was actually across the street at the time of the
shooting. Jenkins had a witness who corroborated his testimony,
and refuted the sole witness for the prosecution. Counsel
described McFadden at the Machner hearing as "quite cooperative
and quite credible" and "a good witness, one that's credible as
to alibi." By contrast, other possible witnesses had given
counsel a "multitude" of conflicting statements. Under these
circumstances, why would counsel confuse the jury with
cumulative witnesses who had made a number of different,
possibly contradictory, perhaps nonexistent, statements over the
course of time? Jenkins' counsel introduced what he believed to
be a credible witness who supported his defense. It cannot be
deficient performance for counsel to decide not to call
cumulative, impeachable witnesses who might, in fact, undermine
the client's case.
¶121 As we have stated, "[a] court must be vigilant against
the skewed perspective that may result from hindsight, and it
may not second-guess counsel's performance solely because the
defense proved unsuccessful." Balliette, 336 Wis. 2d 358, ¶25
(citing Strickland, 466 U.S. at 689; State v. Harper, 57
Wis. 2d 543, 556–57, 205 N.W.2d 1 (1973)). Nonetheless, the
majority opinion tends to second-guess counsel's actions.
Counsel in the case at issue, however, did not render deficient
performance as that term has heretofore been defined. Thus, the
first prong is not satisfied.
B. Prejudice
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No. 2012AP46-CR.akz
¶122 In addition to finding that counsel was deficient, the
majority must also conclude that Jenkins was prejudiced to the
requisite degree. To satisfy the prejudice prong, the defendant
must essentially show a "reasonable probability" that the
outcome at trial would have been different if counsel had called
the witnesses. The majority rests its prejudice determination
on Jones' testimony alone. It concludes that her testimony
alone, albeit conflicting and contradictory, would have changed
the jury's conclusions. For many of the reasons discussed
previously, I disagree. Jones' testimony would have, at best,
been of minimal assistance to the defense and more likely, been
harmful and damaging. I respectfully disagree with the
majority’s conclusion that Jones' testimony would have affected
the outcome of the trial.
¶123 "To warrant setting aside the defendant's conviction,
the defendant must demonstrate that his counsel's deficient
performance was prejudicial to his defense." Carter, 324
Wis. 2d 640, ¶37 (citing Strickland, 466 U.S. at 691–93). "It
is not sufficient for the defendant to show that his counsel's
errors 'had some conceivable effect on the outcome of the
proceeding.'" Id. (quoting Strickland, 466 U.S. at 693).
"Rather, the defendant must show that 'there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Id.; see
also Balliette, 336 Wis. 2d 358, ¶24. Jenkins cannot make this
showing in the case at issue.
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No. 2012AP46-CR.akz
¶124 The defense strategy was to challenge the
identification of Jenkins as the shooter and instead establish
an alibi defense. Even if Jones' testimony could have supported
both parts of that defense, it is difficult to conclude that,
given the significant problems with her inconsistent statements
and involvement in a drug deal that evening, her testimony would
have been persuasive to the jury.
¶125 Even assuming that it was error for Jenkins' trial
counsel to not call Jones, Blunt, and Moore, the inclusion of
their testimony would not have aided Jenkins' defense to the
requisite degree. In the case of Jones, both the court of
appeals and the circuit court concluded, "given all her
contradictions . . . this court cannot say that there's a
reasonable probability that but for not calling her the result
would have been different." Jenkins, No. 2012AP46-CR, ¶15. I
agree.
¶126 Jenkins was also not prejudiced by counsel's failure
to call Blunt or Moore. As the circuit court properly
concluded, Moore's testimony would have been inadmissible
hearsay. Jenkins cannot have been prejudiced by counsel's
failure to call a witness who would not have been allowed to
testify. As for Blunt, the parties stipulated that, had he been
called as a witness, Blunt would have denied involvement in the
shooting, and would have denied knowing Jenkins. It cannot be
said that Blunt's testimony would have changed the outcome of
the trial. As such, failing to call him did not prejudice
Jenkins. Thus, the second prong is, likewise, not shown.
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C. Discretionary Reversal
¶127 Jenkins has also asked this court to grant him a new
trial under our power of discretionary reversal. See Wis. Stat.
§ 751.06. Because I conclude that counsel was not ineffective,
however, I also conclude that the case at issue was fully tried,
and a new trial in the interest of justice is not warranted.
See State v. McGuire, 2010 WI 91, ¶¶61-64, 328 Wis. 2d 289, 786
N.W.2d 227.
¶128 Indeed, when a defendant raises a claim of ineffective
assistance of counsel, relief is afforded to the defendant who
proves that claim. The interest of justice analysis is not
intended as a fallback position for a defendant who does not
succeed in a claim of ineffective assistance of counsel. See,
e.g., State v. Davis, 2011 WI App 147, ¶15, 337 Wis. 2d 688, 808
N.W.2d 130. The interest of justice statute "'was not intended
to vest this court with power of discretionary reversal to
enable a defendant to present an alternative defense at a new
trial merely because the defense presented at the first trial
proved ineffective.'" State v. Neumann, 2013 WI 58, ¶146, 348
Wis. 2d 455, 832 N.W.2d 560 (quoting State v. Hubanks, 173
Wis. 2d 1, 29, 496 N.W.2d 96 (Ct. App. 1992)).
¶129 Jenkins' assertion is that counsel was ineffective.
If he cannot meet that test, he most certainly cannot meet what
should be the more stringent standard set forth in Wis. Stat.
§ 751.06. Wisconsin Stat. § 751.06 is not intended to provide
relief for a defendant who cannot meet the burden of showing
ineffective assistance of counsel.
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No. 2012AP46-CR.akz
¶130 For the foregoing reasons, I dissent.
¶131 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this dissent.
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