State v. Antonio Danya White ( 2024 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 24, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2023AP1258-CR Cir. Ct. No. 2017CF1201
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ANTONIO DANYA WHITE,
DEFENDANT-APPELLANT.
APPEAL from judgments and an order of the circuit court for Rock
County: KARL HANSON, Judge. Affirmed.
Before Kloppenburg, P.J., Blanchard, and Graham, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Antonio White appeals judgments of conviction for
criminal charges related to a shooting incident. The circuit court entered the
No. 2023AP1258-CR
judgments after finding White guilty on four charges at a bench trial. White also
appeals the circuit court order denying his motion for postconviction relief. He
argues that he is entitled to a new trial because the State failed in its constitutional
and statutory obligations to disclose evidence favorable to the defense, and also
because trial counsel provided him with constitutionally ineffective assistance.
We reject his arguments and affirm.
BACKGROUND
¶2 The charges in this case arise from a shooting incident on Dewey
Avenue in Beloit (“the Dewey Avenue shooting”). The Dewey Avenue shooting
occurred on a Monday afternoon in April 2017. Witnesses told police that a Black
man who wore his hair in long dreadlocks, and who was dressed in a red, hooded
sweatshirt and dark pants, pulled a black handgun from a pocket and fired multiple
times in the direction of a nearby vehicle. Two bullets struck a different occupied
vehicle, but fortunately no one in any vehicle or otherwise on the scene was
physically injured. Police recovered three .40 caliber spent casings from the street
where the shots were fired.
¶3 White was charged with the following: three counts of first-degree
recklessly endangering safety by use of a dangerous weapon; possession of a
firearm after an adjudication of delinquency on a felony; possession of a
dangerous weapon by a person under 18; and endangering safety by use of a
dangerous weapon-intentionally discharging a firearm into a vehicle.
¶4 At a bench trial, the circuit court was essentially asked to decide two
questions. Did the prosecution prove beyond a reasonable doubt that White fired
the handgun at the Dewey Avenue shooting? If so, did the State prove beyond a
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No. 2023AP1258-CR
reasonable doubt that White intentionally fired into the occupied vehicle that was
struck by the two bullets?
¶5 On the identity-of-the-shooter question, the prosecution relied on
identifications by three eye witnesses who testified at trial, as well as other
evidence discussed below. The defense sought to raise doubts about the witness
identifications and other evidence, and took the position that the prosecution fell
short of meeting its burden of proof beyond a reasonable doubt.
¶6 The circuit court found White guilty on four of the five counts. The
court acquitted him on one charge of endangering safety by use of a dangerous
weapon by intentionally discharging a firearm into a vehicle. The court
determined that the prosecution failed to prove that White intentionally fired into
the vehicle, as opposed to doing so negligently or recklessly. The court sentenced
White to terms of imprisonment on the four counts of conviction.
¶7 In a postconviction motion filed by his new counsel, White made the
following arguments as pertinent to this appeal.1 He contended that the
prosecution violated its statutory evidence production obligations and, through the
same acts or omissions, committed Brady violations.2 Separately, White argued
1
We do not address arguments that White raised in the postconviction motion which he
does not renew on appeal.
2
See WIS. STAT. § 971.23(1) (2021-22) (defining categories of materials that prosecutors
“must disclose” to defendants, if “within the possession, custody or control of the state,”
including, under subpart (h), “[a]ny exculpatory evidence”); Brady v. Maryland, 373 U.S. 83, 87
(1963) (“[T]he suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.”).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
3
No. 2023AP1258-CR
that trial counsel was constitutionally ineffective in: failing to impeach one trial
witness’s identification of White as the shooter in the Dewey Avenue shooting;
failing to adequately use at trial evidence about a gray vehicle that White was
video-recorded getting into shortly before, and four blocks from, the Dewey
Avenue shooting; failing to investigate White’s prior police contacts that were
referenced in a search warrant used in the investigation of the Dewey Avenue
shooting and failing to object at trial to references to White’s prior police contacts;
and failing to seek suppression of the search warrant.
¶8 The circuit court held an evidentiary hearing to address both the
evidence production claims and the ineffective assistance of trial counsel claims,
consistent with State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
¶9 Potential evidence that was new to both sides surfaced at the
hearing. More specifically, both defense counsel and the prosecutor learned for
the first time about what we will refer to as “the gun-match data.” Testimony
about the gun-match data was given by Joe Cassioppi, a Beloit police detective.
Cassioppi testified that forensic analysis had been conducted through the National
Integrated Ballistic Information Network system, which is operated by the federal
Bureau of Alcohol, Tobacco, Firearms and Explosives. The analysis was of
physical features of the three .40-caliber spent casings that were recovered at the
scene of the Dewey Avenue shooting. Analysts compared those features to the
features of .40-caliber spent casings that had been recovered from the scenes of
other shooting incidents. Cassioppi testified that analysts concluded that the same
firearm that was used in the Dewey Avenue shooting in April 2017 was also used
in two separate shootings that occurred later in Rockford, Illinois, one in
August 2017 and the other in October 2017.
4
No. 2023AP1258-CR
¶10 The day after the evidentiary hearing, the prosecution provided to
the defense additional information that was also new to both the prosecution and
defense. This consisted of Rockford police reports corresponding to the two
Rockford shooting incidents, both of which remained unsolved. Of particular note
in this appeal is the police report relating to the unsolved October 2017 shooting.
This is because that report identified a witness to the shooting, who we refer to as
A.B.3 We make no further reference to the report relating to the August 2017
shooting incident in Rockford.
¶11 The police report on the October 2017 Rockford shooting incident
stated that A.B. told police that A.B. encountered the shooter immediately
following the shooting and that the shooter was “a light-skinned [B]lack male,
approximately 6’2”-6’3”, with thin build” who was holding “a small black
handgun.” Additional notations in this police report implied that A.B. further
described the shooter to police as being 19-26 years old and wearing his hair in
“shoulder length dreadlocks.” As discussed further below, some aspects of this
description are consistent with White’s physical characteristics.
¶12 The gun-match data and the October 2017 Rockford police report
are relevant to the issue of whether White was the shooter in the Dewey Avenue
shooting because of the following additional, undisputed fact: White was confined
in the Rock County Jail in October 2017, awaiting trial in this case. Therefore,
White could not have been the shooter in the October 2017 Rockford incident.
This raises the possible inference that the shooter in the October 2017 Rockford
3
We use fictitious initials to refer to victims and witnesses to the Dewey Avenue and
Rockford shootings.
5
No. 2023AP1258-CR
incident—a person other than White, but who shared some physical features with
him and who used the same gun as was used in the Dewey Avenue shooting—was
the person responsible for the Dewey Avenue shooting. We will refer to all of this
evidence collectively as “the third-party perpetrator evidence.” The defense
requested additional time to investigate the third-party perpetrator evidence, and
then filed an “addendum” to the post-conviction motion, arguing that failure by
the prosecution to provide the defense with the third-party perpetrator evidence in
time for defense use at the bench trial violated WIS. STAT. § 971.23(1)(h) and
Brady. The parties also continued to dispute White’s ineffective assistance of trial
counsel claims.
¶13 After considering submissions by the parties and oral arguments, the
circuit court issued a written decision rejecting each of White’s arguments for
relief. White appeals.
DISCUSSION
I. EVIDENCE PRODUCTION
¶14 “A defendant has a due process right to any favorable evidence
‘material either to guilt or to punishment’ that is in the State’s possession.” State
v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468 (quoting Brady
v. Maryland, 373 U.S. 83, 87 (1963)). This includes any evidence that may
impeach a witness called by the State. Id. (citing Giglio v. United States, 405 U.S.
150, 154 (1972)). “A Brady violation has three components: (1) the evidence at
issue must be favorable to the accused, either because it is exculpatory or
impeaching; (2) the evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) the evidence must be material.” Wayerski, 385
Wis. 2d 344, ¶35 (citing State v. Harris, 2004 WI 64, ¶15, 272 Wis. 2d 80, 680
6
No. 2023AP1258-CR
N.W.2d 737, in turn citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
“Evidence is not material under Brady unless the nondisclosure ‘was so serious
that there is a reasonable probability that the suppressed evidence would have
produced a different verdict.’” Wayerski, 385 Wis. 2d 344, ¶36 (quoting
Strickler, 527 U.S. at 281).
¶15 The prosecution in a criminal case also has a statutory duty to
disclose exculpatory evidence within a reasonable time before trial. WIS. STAT.
§ 971.23(1)(h). As with Brady, the statutory requirement extends to impeachment
evidence. Harris, 272 Wis. 2d 80, ¶¶27-30. A statutory evidence production
violation occurs when the defense files a discovery demand, the case has
progressed to or beyond the point at which there is sufficient time for the defense
to make effective use of evidence before trial, the State suppresses the evidence
which is within its custody and control, the suppressed evidence is favorable to the
defense, and the evidence is material.4 See id., ¶¶35-39. The statutory materiality
requirement is the equivalent of the requirement of prejudice under Brady;
“‘evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.’” Harris, 272 Wis. 2d 80, ¶14 (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)).
¶16 Courts on appeal “independently review whether a due process
violation has occurred, but we accept the trial court’s findings of historical fact
unless clearly erroneous.” Wayerski, 385 Wis. 2d 344, ¶35.
4
The States does not argue in this appeal that White failed to file a discovery demand
sufficient to trigger the statutory discovery obligations.
7
No. 2023AP1258-CR
¶17 We reject White’s evidence production argument based on our
conclusion that White fails to show materiality, which is required under both
Brady and the statutory evidence production standards. White fails to show a
reasonable probability that the result of the proceeding would have been different
if the third-party perpetrator evidence had been disclosed to the defense.
¶18 The State does not dispute that the third-party perpetrator evidence,
if admissible at trial for the truth of the matters asserted in reports, would be
exculpatory to at least some degree.
¶19 Further, we assume without deciding, in favor of White’s positions
on appeal, that White is correct on each of the following propositions, each of
which is disputed on appeal by the parties. First, we assume without deciding that
the prosecution possessed the gun-match data in time to provide all of this
information to the defense so that the defense could use it at trial and also either
possessed, or had a duty to learn of and obtain, the Rockford police reports on the
same timeline. Second, we assume without deciding that all of the third-party
perpetrator evidence would be admissible at trial, to be considered by the
factfinder for the truth of the matters asserted (e.g., that the defense could call
A.B., who would testify consistently with the relevant allegations contained in the
Rockford police report, and that the factfinder at White’s trial could consider those
allegations for their truth).5 Third, we assume without deciding that we should
give no weight to the statements made by the circuit court in resolving the
5
In light of this assumption, we need not address White’s argument that we should
remand for an evidentiary hearing to give him an opportunity to show that he could elicit
relevant, admissible testimony at a new trial from one or more witnesses related to the
October 2017 shooting incident in Rockford.
8
No. 2023AP1258-CR
postconviction motion regarding how the court, as the trier of fact at trial, would
have assessed the third-party perpetrator evidence if it had been presented at trial.
¶20 Bearing in mind those assumptions, we now provide additional
background to explain our materiality conclusion, beginning with evidence
presented at trial.
¶21 The prosecutor played a 57-second video recording reflecting
activity that occurred nine minutes before the Dewey Avenue shooting and four
blocks away from it. Police Officer Brandon Jones and Detective Patrick Mackey
both testified that they were familiar with White from past contacts with him and
that the video recording showed images of White, and defense counsel did not
contest these identifications of White during cross-examinations of Jones and
Mackey. The video shows White run up to, then run away from, several people
who were then engaged in a physical fight in front of the Keeler Store in Beloit.
On the video, White is wearing a red jacket with black sleeves. He runs from the
fight in front of the Keeler Store and gets into a gray four-door vehicle that drives
away.
¶22 Detective Mackey further testified that two other persons he could
identify in the Keeler Store video, in addition to White, were Rossie Brice, who is
a half-brother to White, and Eric Short, a nephew of White’s.
¶23 A witness we identify as C.D. testified to the following. C.D.
witnessed the Dewey Avenue shooting while he was driving to his residence with
his son and daughter. The shooter was a Black male who was “tall,” a “pretty big
guy with long hair,” who wore his hair in “braids.” The shooter seemed to aim the
gun at another Black male, who ran away. C.D. indicated to police at the time of
the shooting that C.D. was “[a]bout 50” percent sure that an image of White’s face
9
No. 2023AP1258-CR
was the same person who fired the gun, and also that C.D. was “pretty sure” of
that identification. C.D. also told police that the shooter was approximately 25-35
years old.
¶24 A witness we identify as E.F. testified to the following. E.F., along
with her husband and young child, were in the car that was struck by two bullets.
A car was stationary in the middle of Dewey Avenue up the block from E.F.’s car.
Next to the stationary car was a group of more than five persons who all appeared
to be Black and who appeared to be just hanging out. As a different car
approached, a Black male wearing a “red bulkier shirt,” with his hair in “longer
dreadlocks,” “jumped out of the group” that was up the block from E.F.’s car and
started “almost running towards” E.F.’s car, moving at the pace of a “trot.” The
man’s dreadlocks swayed as he ran. When the man was the equivalent of four or
five houses down the block from E.F., he shot a gun twice in the direction of the
approaching car, paused, and then fired a third round that hit the windshield of
E.F.’s car, showering the car’s occupants in broken glass. The shooter got into the
car that was in the middle of Dewey Avenue, which departed the scene.
¶25 E.F. testified that she was “60 percent” certain that a photo of
White’s face contained in a photo array that police showed her after the shooting
was an image of the shooter, with her degree of certainty at about that same level
both at the time of the identification following the shooting and at the time of trial.
The shooter and White both appeared to have the same “longer dreadlocks” and
“smaller-featured face.”
¶26 During E.F.’s trial testimony, the prosecutor played the Keeler Store
video. E.F. testified that the person who Officer Jones identified as White from
the video appeared to E.F. to be “very, very similar” to the Dewey Avenue shooter
10
No. 2023AP1258-CR
who trotted toward her car, including wearing a similar “bulkier” red jacket,
having a similar hair style, and moving in a similar manner. Regarding the person
identified as White in the video, his manner of running in the video, his
“movements and the hair,” were “definitely pretty much spot on the way I
remember … the gentleman coming forward to us during the shooting” on Dewey
Avenue.
¶27 In addition, E.F. testified that a Black male who was a larger person
than White, who can be seen in the Keeler Store video, resembles a person who
was with the group at the scene of the Dewey Avenue shooting from which the
shooter emerged. E.F. also testified that White was the only person shown in the
Keeler Store video who wore hair styled in dreadlocks.
¶28 A witness we identify as G.H. testified to the following. He was
sitting in a car with his wife, E.F., when a man who had been in a group of people
in front of them “jumped out from the group,” ran toward G.H., “pulled out a
gun,” and fired three shots, the last of which hit the windshield of G.H.’s car and
almost hit G.H. When the shooter fired the gun, he was approximately 30-40 feet
from the car G.H. and E.F. were in. The shooter was a Black man with a “skinnier
… head,” and dreadlocks “down to about shoulder length, maybe longer,” with an
“average build.” He wore a sweat-shirt-like red shirt and blue jeans. G.H.
testified that he was “60 percent” certain that a photo of White’s face in a photo
array that police showed him after the shooting was an image of the shooter. This
was based on characteristics of White’s hair and the shape of his head, which was
“more elongated.”
¶29 As he had done when examining E.F., the prosecutor played for
G.H. the Keeler Store video. G.H. testified that, “based off of the clothing, the
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No. 2023AP1258-CR
dreadlocks, and physical characteristics that I recall,” the person who Officer
Jones identified as White in the video “does seem to be the person that I recall
doing the shooting” on Dewey Avenue. “The way the person in the Keeler Store
video was running accurately depicts how I remember the person running” on
Dewey Avenue before shooting. G.H. also testified that, while the person
identified as White in the Keeler Store video wore a red top with “dark, full length
sleeves,” in the stress of the moment of the shooting G.H. could have processed
the sleeves as red, three-quarter-length. Further, like E.F., G.H. testified that he
believed that a Black male who had a larger frame than White and who can be
seen in the Keeler Store video was with the group at the scene of the Dewey
Avenue shooting from which the shooter emerged.
¶30 There was also evidence that, two days after the Dewey Avenue
shooting, police executed a search warrant at White’s residence, which was
located two blocks from the shooting. In a bedroom, police found a plastic bag
containing 22 unfired Smith & Wesson Winchester .40-caliber cartridges, which is
precisely the type of cartridges used by the shooter in the Dewey Avenue shooting.
A state crime laboratory analyst testified that, of the 15 or 16 fingerprints
developed from the plastic bag containing the cartridges that were suitable for
comparison, 13 belonged to White.
¶31 White called as a witness his brother, Johnny Brice, who testified to
the following. Brice lived with his mother in the residence that police searched,
specifically residing in the bedroom where the plastic bag containing unfired
cartridges was found by police. White was not living in the residence at the time
of the Dewey Avenue shooting. Brice had obtained and owned the unfired
cartridges for a long time, although he did not own a .40-caliber firearm.
12
No. 2023AP1258-CR
¶32 Bearing in mind the nature of the trial evidence, we now explain
why we conclude that White fails to show a reasonable probability that, had the
State timely disclosed the third-party perpetrator evidence, the result of the
proceeding would have been different.
¶33 Particularly strong evidence was presented in the testimony of both
E.F. and G.H. that, to a high degree of certainty, the person who is seen running in
the Keeler Store video—who the defense did not dispute was White—was the
same person they saw run in a distinctive manner and then fire the shots on Dewey
Avenue. Both E.F. and G.H. testified to multiple matching aspects of the
appearance, dress, and gait of the Dewey Avenue shooter and White as shown in
the Keeler Store video just before, and only blocks from, the Dewey Avenue
shooting. Further, both E.F. and G.H. testified that another person who is seen in
the Keeler Store video resembled someone also present at that fight, adding to the
proof of a direct nexus between the Keeler Store activity in which White
participated and the Dewey Avenue shooting.6
¶34 It is true that the identifications of White’s photographed face made
by C.D., E.F., and G.H., standing alone, were not individually or cumulatively
robust proof of White’s guilt. But in contrast, a factfinder at a new trial would be
reasonably expected to place considerable weight on the testimony of E.F. and
G.H. about the Keeler Store video images of White matching the Dewey Avenue
6
White makes a passing suggestion that the circuit court could not rely on the
identification testimony by E.F. and G.H. because showing these witnesses the Keeler Store video
“was akin to a ‘showup’ procedure [in which police] present[] [the image of] a suspect singly to a
witness for identification.” But White’s argument along these lines is undeveloped in multiple
respects, including failures to cite on-point legal authority and to show that White raised this issue
in the circuit court, and we reject this as an argument based on the lack of development.
13
No. 2023AP1258-CR
shooter’s appearance and movements. Added to this was the evidence linking
White to at least one other person who witnesses placed at the scenes of both the
Keeler Store incident and the Dewey Avenue shooting, as well as the evidence
linking White to the Smith & Wesson Winchester .40-caliber cartridges of
precisely the same type as those used in the Dewey Avenue shooting. All of this
evidence together created a solid basis to find White guilty.
¶35 Turning to the third-party perpetrator evidence, to recap, we assume
that, at a new trial, the defense would be able to elicit testimony from A.B. that the
shooter in the October 2017 shooting incident in Rockford, who used the same gun
as was used in the Dewey Avenue shooting, was a light-skinned Black male,
approximately 6’2”-6’3”, with a thin build, who was 19-26 years old and wore his
hair in “shoulder length dreadlocks.” The factfinder at a new trial would also be
informed that the Rockford shooter could not be White (although perhaps to avoid
unduly prejudicing White, a jury as trier of the facts would not learn the detail that
this was because he was in jail at the time on the charges in this case).
¶36 White now, we think reasonably, uses the following shorthand to
characterize A.B.’s reported description of the Rockford shooter: “a tall, thin,
young [B]lack male with shoulder-length dreadlocks.” The State does not dispute
that the Dewey Avenue shooting was perpetrated by someone who also fits that
general description. But that general description would also have fit many other
people. We are left with only a weak inference that, if one discounted all of the
strong evidence of White’s guilt that we have summarized above, the Rockford
shooter (who could not have been White) and the Dewey Avenue shooter could
have been the same person. Given the strong evidence of White’s guilt that we
have summarized above, we conclude that if the factfinder had been given the
14
No. 2023AP1258-CR
additional hypothetical testimony from A.B. there is not a reasonable probability
that the result of the proceeding would have been different.
¶37 In sum on this issue, this is not a situation in which the evidence
favorable to the defense “could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” See Kyles v. Whitley,
514 U.S. 419, 435 (1995). White relies heavily on this U.S. Supreme Court
opinion, but that was a case in which, unlike here, the evidence that was not
disclosed “would have resulted in a markedly weaker case for the prosecution and
a markedly stronger one for the defense.” See id. at 441.
II. INEFFECTIVE ASSISTANCE
¶38 The Sixth and Fourteenth Amendments to the United States
Constitution guarantee criminal defendants the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984); see also WIS.
CONST., art. I, § 7. The factual circumstances of the case, counsel’s conduct, and
counsel’s strategy generally constitute facts to be determined by the circuit court,
which will not be overturned unless clearly erroneous. See State v. Thiel, 2003
WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305. “Whether counsel’s performance
satisfies the constitutional standard for ineffective assistance of counsel is a
question of law, which we review de novo.” Id. “To demonstrate that counsel’s
assistance was ineffective, the defendant must establish that counsel’s
performance was deficient and that the deficient performance was prejudicial.”
State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93. “If the
defendant fails to satisfy either prong, we need not consider the other.” Id.¶39 Whether trial counsel performed deficiently is an issue of law that
we review de novo. Id., ¶38. To establish that counsel’s performance was
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No. 2023AP1258-CR
deficient, the defendant must show that it fell below “an objective standard of
reasonableness.” Thiel, 264 Wis. 2d 571, ¶19. Whether deficient performance
was prejudicial is also an issue of law that we review de novo. State v. Domke,
2011 WI 95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364. To establish that deficient
performance was prejudicial, 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. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., ¶54 (quoting Strickland,
466 U.S. at 694).
A. E.F.’s Facial Identification
¶40 White argues that it was ineffective for trial counsel to fail to attempt
to impeach E.F.’s testimony that she was “60 percent” certain that a photo of
White’s face contained in a photo array that police showed her after the shooting
was an image of the shooter. White contends that counsel should have impeached
E.F. with the video recording of E.F.’s viewing of a photo array, which would
have undermined her identification of his face. We assume without deciding that
it was deficient performance not to impeach E.F.’s identification of White by his
face with the video. Operating from this assumption, we conclude that there is not
a reasonable probability that the result would have been different if E.F. had been
impeached in this manner.
¶41 At the postconviction hearing trial counsel did not dispute, nor does
the State now dispute, White’s position that defense counsel could have used the
following aspects of the video to raise significant issues about the reliability of
E.F.’s facial identification testimony. E.F. took a lengthy pause after being shown
White’s photo and said only that it was “possible” that he was the Dewey Avenue
16
No. 2023AP1258-CR
shooter, indicating that her certainty that it was the same person was 60 percent.
When shown a photo of another person, E.F. took a longer pause and said, “I can’t
be for certain,” and said that the second person “looks very similar” to the Dewey
Avenue shooter, but also said that she could not be certain either way. She added
that the photo of White and the person in the next photo she looked at “both look
very … it could be either or.” When shown yet another photo, she took another
pause and said, “Now, I might almost change the one I did write on [White’s
photo], because they’re almost identical to me.” She later said, “It’s so hard,” and
“They’re very similar.”
¶42 These aspects of the video could readily support a finding that E.F.’s
recall of the Dewey Avenue shooter by his face was not reliable. But E.F.
assessed her certainty of facial identification as being 60 percent, which the circuit
court would have reasonably interpreted to mean only that she thought it was
slightly more likely than not that White had the face of the shooter. Further, as we
have noted, her much more incriminating testimony was that the appearance,
dress, and gait of the Dewey Avenue shooter matched White in the Keeler Store
video. In sum on this issue, essentially excising from the evidence E.F.’s facial
identification does not change the evidence of guilt in a meaningful way.
Accordingly, we reject this ineffective assistance argument based on White’s
failure to show prejudice.
B. Vehicle Identification
¶43 We resolve the second ineffective assistance issue on the same
ground of a lack of showing prejudice. White argues that trial counsel did not
sufficiently probe witnesses regarding the vehicle-identification aspects of the
following facts: in the Keeler Store video, White is seen getting into a gray sedan,
17
No. 2023AP1258-CR
but witnesses to the Dewey Avenue shooting consistently described the people
standing at the scene as being next to two cars that were red. The exception was
one witness (G.H.), who described a gray sedan being at the Dewey Avenue scene,
but G.H. admitted that his memory on this point changed after he watched the
Keeler Store video. The premise of White’s argument is that, if the gray sedan
that appears in the Keeler Store video was not identified by witnesses at the scene
of the Dewey Avenue shooting, then White was less likely to have been the
shooter. This is because, according to White, if he or an associate of his travelled
to the Dewey Avenue shooting scene in that gray sedan, then that vehicle, not a
red one, would have remained on the scene after White got out of it. Assuming
without deciding that it was deficient performance for counsel to fail to pursue the
vehicle-identification issue more than counsel did, White fails to show that he was
prejudiced by counsel’s performance.
¶44 There are simply too many layers of speculation to White’s
argument to support a determination of prejudice, particularly in light of the strong
identification evidence that we summarize above. White fails to establish that,
even if defense counsel had devoted maximum effort into the vehicle-
identification issue, there was sufficient available evidence to present a strong case
for all of the following series of possibilities: in order for White to have appeared
at the scene of the Dewey Avenue shooting, he necessarily got there by way of the
gray sedan, as opposed to by way of any number of other possible means, because
that is the particular vehicle he entered at the Keeler Store scene; if White did
reach the scene of the Dewey Avenue shooting by way of the gray sedan, then the
gray sedan would necessarily have remained both on the scene and potentially
visible to witnesses at the time of the shooting; if the gray sedan was in fact in the
area and potentially visible, then witnesses to this traumatic incident would have
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No. 2023AP1258-CR
had good reason to pay sufficient attention to recall the appearances of vehicles
and to specifically recall that the gray sedan was in the area. Beyond those points,
at a retrial, G.H. would presumably testify again that the gray sedan was in fact on
the scene, and a factfinder might credit that testimony even if there is a basis to
impeach it.
C. Evidence of White’s Character
¶45 White asserts that defense counsel was ineffective in allegedly
failing to investigate references made at trial to White having prior police contacts
that allegedly related to violent crimes and in failing to object to those references.
These arguments are not well developed or supported. It is sufficient to reject
these arguments to note the following. The circuit court explained in its ruling on
the postconviction motion that the court did not rely on these references to reach
impermissible conclusions. When the court is the trier of fact, the court is
presumed to properly discern and weigh improper inferences and to disregard
extraneous matters. See State v. Cathey, 32 Wis. 2d 79, 90, 145 N.W.2d 100(1966). White fails to develop a supported argument for either deficient
performance or prejudice.
D. Search Warrant
¶46 White argues that trial counsel was ineffective in failing to move to
suppress the evidence obtained in the search of White’s residence under authority
of a search warrant. More specifically, White contends that counsel should have
requested a Franks-Mann hearing, at which he argues he would have established
that there were false allegations and material omissions in the search warrant
affidavit supporting the warrant. See Franks v. Delaware, 438 U.S. 154, 155-56
(1978); State v. Mann, 123 Wis. 2d 375, 367 N.W.2d 209 (1985). At a Franks-
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No. 2023AP1258-CR
Mann hearing, if White could show, by a preponderance of the evidence, that
police deliberately or recklessly included false information in, or omitted material
information from, the warrant affidavit, then the circuit court would have been
required to strike any false information from, or add any omitted information to,
the affidavit and to assess probable cause based on the information that remained.
See Franks, 438 U.S. at 156; Mann, 123 Wis. 2d at 388-89. We conclude that
White fails to prove deficient performance because he fails to show that if counsel
had brought a Franks-Mann motion it would have been successful. See State v.
Maloney, 2005 WI 74, ¶37, 281 Wis. 2d 595, 698 N.W.2d 583 (failing to bring
suppression motion that would have been denied does not constitute deficient
performance).
¶47 Courts defer to a warrant-issuing judge’s determination of probable
cause “‘unless the defendant establishes that the facts are clearly insufficient to
support a probable cause finding.’” State v. Green, 2022 WI 41, ¶2, 402 Wis. 2d
44, 975 N.W.2d 198 (quoted source omitted). “Probable cause exists where, after
examining all the facts and inferences drawn from the affidavits, ‘there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). A warrant-
issuing judge evaluating an affidavit for probable cause is permitted to draw
reasonable inferences; the test is “‘whether the inference drawn is a reasonable
one’” and “‘not whether the inference drawn is the only reasonable inference.’”
State v. Gralinski, 2007 WI App 233, ¶25, 306 Wis. 2d 101, 743 N.W.2d 448(quoting State v. Ward, 2000 WI 3, ¶30, 231 Wis. 2d 723, 604 N.W.2d 517)
(emphasis added in Gralinski).
¶48 In the State’s response to White’s postconviction motion on this
issue, the State invited the circuit court to disregard various allegations in the
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No. 2023AP1258-CR
affidavit that White challenged in his motion. The court accepted these
concessions for purposes of resolving this issue. The court concisely summarized
as follows what remains in the affidavit averments that could support a finding of
probable cause that a search of the residence would reveal evidence related to the
Dewey Avenue shooting:
 G.H. saw “a Black man with shoulder-length dreadlocks shoot a
handgun three times and one of those shots struck his car.”
 White lived at the address of the residence to be searched and his
mother had recently confirmed to police that he lived there.
 “White wears his hair in shoulder-length dreadlocks.”
 G.H. “identified White, from a photo array, as the shooter.”
Implied in this summary by the circuit court, and not disputed by White on appeal,
was a time line between the shooting and the submission of the affidavit that was
sufficiently tight for probable cause purposes.
¶49 We conclude that White fails to show deficient performance of his
trial counsel by failing to establish either that: these averments in the affidavit
summarized by the circuit court were clearly insufficient to support a
determination that there was a fair probability that contraband or evidence of the
crime would be found at White’s residence; or any of these averments should not
count as viable allegations under Franks-Mann. We now address White’s
pertinent argument to the contrary.
¶50 It is undisputed that G.H. assessed his level of certainty at 60
percent, something more certain than a 50-50 chance but something less than
complete certainty or nearly so.
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No. 2023AP1258-CR
¶51 In addition, White asserts in his appellate briefing, without the
benefit of a citation to the record, that G.H. qualified his identification of White
through the photo array by saying that White “could be” the Dewey Avenue
shooter. This is apparently based on the affirmative response of trial counsel at
the Machner hearing to the following question: “And [G.H.] in his video
statement only said that the suspect from Antonio’s photo, quote, ‘Could be the
shooter’?” We note that this “could be” concept does not signify anything not
already evident from the 60-percent qualifier. When a witness explicitly identifies
a person as a perpetrator to a degree of certainty less than 100 percent, the witness
is saying that the person “could be” the perpetrator and not that the person “is” the
perpetrator.
¶52 Based on the 60-percent qualifier and the “could be” concept, White
contends that trial counsel should have argued that the affidavit’s averment that
G.H. “identified Antonio White from the array as the person who fired the gun”
was a deliberately false statement or one that was made in reckless disregard of the
truth, and on that basis argued that the court was required to disregard the
averment in considering whether the affidavit states probable cause.
¶53 But the averment was not that G.H. was 100 percent certain or
nearly so. The averment conveyed only that G.H. had made a positive
identification. This was true. The issuing judge would not reasonably have
interpreted this to mean that G.H. had necessarily told police that the photo array
identification was conclusive or free of doubt. A judge applying common sense
would assume that, in the absence of a qualifier emphasizing certainty, this was an
ordinary identification made to a degree of certainty greater than 50-50. Put
differently, given that G.H. identified White at a greater-than-50-percent level, the
degree to which G.H. expressed certainty is not a fact that “[a]ny reasonable
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No. 2023AP1258-CR
person would have known … was the kind of thing [that] the judge would wish to
know” in order to determine whether there was probable cause to issue the
warrant. See United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993); see
also State v. Manuel, 213 Wis. 2d 308, 315, 570 N.W.2d 601 (Ct. App. 1997) (to
support Franks-Mann argument, what is omitted from the affidavit must be
“‘critical material,’” such that “‘inclusion is necessary for an impartial judge to
fairly determine probable cause’” (quoting Mann, 123 Wis. 2d at 385-86)). It
would be different if G.H. had expressed concrete doubt, or had placed his
certainty at less than 50 percent.
¶54 On a related note, we agree with a point that the circuit court made
in its decision on the postconviction motion, namely, that the result would be the
same if one were to supplement the affidavit by adding the 60-percent qualifier to
the averment about G.H.’s identification. See Jacobs, 986 F.2d at 1234; Mann,
123 Wis. 2d at 388-89. That is, there would have been probable cause even if the
averments in the affidavit that the court determined were sufficient included the
added information that G.H. assessed his certainty to be 60 percent.
CONCLUSION
¶55 For all these reasons, we affirm the judgments of conviction and the
order denying the motion for postconviction relief.
By the Court.—Judgments and order affirmed.
This opinion will not be published. See WIS.
STAT. RULE 809.23(1)(b)5.
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