Opinion
No. 2013AP2590.
2014-09-16
STATE of Wisconsin, Plaintiff–Respondent, v. Jerry Simone WILSON, Defendant–Appellant.
Appeal from an order of the circuit court for Milwaukee County: Stephanie G. Rothstein, Judge. Affirmed.
Before CURLEY, P.J., FINE and KESSLER, JJ. ¶ 1 PER CURIAM.
Jerry Simone Wilson, pro se, appeals an order of the circuit court denying his Wis. Stat. § 974.06 (2011–12) motion without a hearing. Wilson claimed he was entitled to a new trial because of (1) newly discovered evidence; (2) insufficient evidence; (3) jury bias; and (4) ineffective counsel. We conclude the circuit court properly denied the motion, so we affirm the order.
All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
¶ 9 When moving for a new trial based on newly discovered evidence, the defendant must show by clear and convincing evidence that “(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.” State v. Avery, 2013 WI 13, ¶ 25, 345 Wis.2d 407, 826 N.W.2d 60 (quotation marks and citation omitted). “If the defendant is able to make this showing, then ‘the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial.’ ” Id. (citation omitted). Here, the circuit court noted that Wilson “arguably satisfies the first four of the general requirements” but concluded that he had failed to show a reasonable probability of a different result because Wallace's statement was “based on rank hearsay and lacks corroborating evidence.”
¶ 10 Most of Wallace's “proof” that Smith–Curran was the shooter is based on things he supposedly said to others. This is hearsay, and hearsay evidence is generally not admissible at trial. See Wis. Stat. § 908.02. Inadmissible evidence cannot provide a basis for challenging a conviction. See State v. Bembenek, 140 Wis.2d 248, 253, 409 N.W.2d 432 (Ct.App.1987). Also, Wallace claimed she saw Smith–Curran drinking and doing drugs and offered a motive for him to identify Wilson as the shooter. However, this evidence is merely impeachment evidence, which requires corroboration. See Greer v. State, 40 Wis.2d 72, 78, 161 N.W.2d 255 (1968).
¶ 11 We therefore agree with the circuit court's conclusion that Wilson has not established a reasonable probability of a different result with Wallace's testimony. Accordingly, he cannot establish prejudice from trial counsel's failure to pursue Wallace, see Allen, 274 Wis.2d 568, ¶ 26, 682 N.W.2d 433 (prejudice requires showing reasonable probability of different result but for counsel's error), and he cannot establish postconviction counsel was ineffective for failing to challenge trial counsel's performance regarding Wallace, see Ziebart, 268 Wis.2d 468, ¶ 14, 673 N.W.2d 369 (counsel is neither deficient nor prejudicial for failing to pursue a legal challenge that would have been rejected). II. Sufficiency of the Evidence and Jury Bias
¶ 12 Wilson's second argument is that “the State simply failed to present even a particle of evidence” to support his convictions. His third argument is that the trial court “failed to protect his right to an impartial jury by not fully inquiring into what impact ... threats had on the jury” when concerns were raised during trial. The circuit court declined to grant relief on either issue, holding that “[a] record already exists” on those issues and, thus, “these claims must be raised in the context of a habeas corpus petition in the Court of Appeals” under Knight.
Nowhere in the postconviction motion or the appellate brief does Wilson identify the substance of the threats.
¶ 13 In many circumstances, postconviction counsel will need to file a postconviction motion to raise and preserve issues as a precursor to raising them on appeal. See, e.g., Rothering, 205 Wis.2d at 677–78, 556 N.W.2d 136 (postconviction motion necessary to preserve claims of ineffective trial counsel). However, a postconviction motion is not a necessary predicate for appellate challenges to sufficiency-of-the-evidence challenges or to issues that have already been raised and, thus, preserved in the trial court. See Wis. Stat. § 974.02(2); Rothering, 205 Wis.2d at 678 n. 3, 556 N.W.2d 136. Therefore, both sufficiency of the evidence and jury bias could have been raised in Wilson's appeal.
¶ 14 To the extent that Wilson believes that appellate counsel was ineffective for failing to raise those issues, the circuit court correctly noted that the remedy for such claims is a petition for a writ of habeas corpus filed in this court, not a Wis. Stat. § 974.06 motion. See State v. Starks, 2013 WI 69, ¶ 35, 349 Wis.2d 274, 833 N.W.2d 146; Knight, 168 Wis.2d at 520, 484 N.W.2d 540. The circuit court therefore appropriately refused to grant relief on these two issues by way of the postconviction motion. III. Ineffective Trial and Postconviction Counsel
In his postconviction motion and brief, Wilson argues that his sufficiency of the evidence issue cannot be subject to the procedural bar of State v. Escalona–Naranjo, 185 Wis.2d 168, 185, 517 N.W.2d 157 (1994), because “[e]ven though the issue might properly have been raised on appeal, it presents an issue of significant constitutional proportions and, therefore, must be considered in this motion for post-conviction relief.” Although Escalona is not the reason for rejecting Wilson's sufficiency argument, we note that the language Wilson quoted comes from Bergenthal v. State, 72 Wis.2d 740, 748, 242 N.W.2d 199 (1976), and was expressly overruled in Escalona. See Escalona, 185 Wis.2d at 181, 517 N.W.2d 157.
¶ 15 Wilson's final argument is that trial counsel was ineffective for not seeking to suppress identifications of him made by four witnesses viewing photo arrays. Wilson further contends that postconviction counsel was ineffective because he did not pursue and preserve this issue for appeal.
¶ 16 The circuit court explained why Wilson's arguments regarding the photo arrays were erroneous. The six-photo reference sheets had Wilson's photo in one of six positions but, for each array, the individual photographs were printed, placed in folders, and shuffled, before being shown to witnesses. This meant that “the order of the photographs on the [reference] charge do not necessarily correspond with the order of the folders[.]” Wilson suggests that he was misidentified because the photo numbers from the reference sheets do not match the numbers for the individual photos in which he was identified.
¶ 17 However, the individual used by the circuit court in its example had initialed Wilson's single photograph, clearly identifying him, even though that photo was in a different numbered folder (four) than its spot in the reference sheet (three). This method of presenting photo arrays to witnesses is common and was well-explained by police testimony at trial. As the circuit court concluded, a motion to suppress would have been a meritless challenge, so neither trial counsel nor postconviction counsel was ineffective for failing to pursue it. The circuit court properly denied Wilson's motion without a hearing.
Order affirmed.
This opinion shall not be published. See Wis. Stat. RuleE 809.23(1)(b)5.