State v. Jimothy A. Jenkins ( 2014 )


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    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 App. 2013 – Unpublished)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    A. Jenkins, seeks review of an unpublished decision of the court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    State v. Jenkins, No. 2012AP46-CR, unpublished slip op.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
    7
    No.        2012AP46-CR.akz
    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.
    8
    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
    9
    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.
    10
    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
    11
    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.
    12
    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.
    13
    No.   2012AP46-CR.akz
    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.
    14
    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.
    15
    No.   2012AP46-CR.akz
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