State v. Jimothy A. Jenkins

• Court: Wisconsin Supreme Court
• Decided: July 11, 2014
• Docket: 2012AP000046-CR
• Status: Published

Opinion

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 App. 2013 – Unpublished)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’Neil, 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A. Jenkins, seeks review of an unpublished decision of the court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1 State v. Jenkins, No. 2012AP46-CR, unpublished slip op.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

¶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

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

¶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.

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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

¶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.

¶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