2018 WI 34
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2561
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
David McAlister, Sr.,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
(no cite)
OPINION FILED: April 17, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 11, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Emily S. Mueller
JUSTICES:
CONCURRED: KELLY, J., concurs (opinion filed).
DISSENTED: A.W. BRADLEY, J., dissents, joined by
ABRAHAMSON, J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Robert R. Henak, Ellen Henak, and Henak Law Office,
S.C., Milwaukee. There was an oral argument by Robert R. Henak.
For the plaintiff-respondent, there was a brief filed by
Scott E. Rosenow, assistant attorney general, and Brad D.
Schimel, attorney general. There was an oral argument by Scott
E. Rosenow.
2018 WI 34
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2561
(L.C. No. 2005CF0324)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. APR 17, 2018
David McAlister, Sr., Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner
REVIEW of a decision of the court of appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. In January 2007, a
jury convicted David McAlister, Sr. ("McAlister") of attempted
armed robbery (threat of force), armed robbery (threat of force)
and possession of a firearm by a felon for crimes that occurred
in late 2004. At trial, the State presented testimony from
Nathan Jefferson ("Jefferson") and Alphonso Waters ("Waters").
They testified that McAlister was their accomplice in the
robberies.
¶2 In 2014, McAlister filed the Wis. Stat. § 974.06
motion for a new trial that is now before us. He alleged that
he had newly discovered evidence represented by the affidavits
No. 2014AP2561
of three men who allege that Jefferson and Waters lied when they
testified that McAlister was involved in the crimes for which he
was convicted. The circuit court1 denied McAlister's motion
without an evidentiary hearing, and the court of appeals
affirmed.2
¶3 Our review focuses on whether McAlister has provided
newly discovered evidence that is sufficient to require the
circuit court to hold an evidentiary hearing. In so doing, we
consider whether the affidavits McAlister submitted in support
of his motion meet the requirements necessary to qualify as
newly discovered evidence. We specifically examine whether the
affidavits were cumulative evidence and whether they were
uncorroborated evidence for which corroboration should be
required.
¶4 We conclude that the affidavits were merely cumulative
evidence because they were additional evidence of the same
general character as was subject to proof at trial, i.e., that
Jefferson and Waters lied when they implicated McAlister in
order to achieve favorable plea bargains for themselves. We
also conclude that the affidavits were insufficient to require
the circuit court to hold a hearing on McAlister's motion for a
new trial because they were supported by neither newly
discovered corroborating evidence or circumstantial guarantees
1
The Honorable Emily S. Mueller of Racine County presided.
2
State v. McAlister, No. 2014AP2561, unpublished order
(Wis. Ct. App. Aug. 10, 2016).
2
No. 2014AP2561
of trustworthiness. Therefore, the circuit court did not
erroneously exercise its discretion when it denied McAlister's
motion for a new trial without an evidentiary hearing. State v.
Avery, 2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60.
Accordingly, we affirm the court of appeals' affirmance of the
circuit court.
I. BACKGROUND
¶5 The two crimes of which McAlister was convicted
occurred in December 2004 in the City of Racine. On December
21, Nathan Jefferson and Monique McAlister ("Monique") attempted
an armed robbery of the Catholic Community Credit Union (the
"Credit Union").3 When the Credit Union's security alarms began
to ring, Jefferson and Monique ran from the scene without any
money. On December 28, Waters, Jefferson and Monique committed
an armed robbery at Wisconsin Auto Title Loan ("Title Loan").
¶6 Police arrested Waters and Jefferson separately in
March 2005 for robberies unrelated to the December 2004
robberies. Waters was questioned by Racine Police Investigator
William Warmington regarding an armed robbery that occurred at
an Open Pantry. Waters initially denied any knowledge or
involvement, but after being confronted with video footage that
Warmington indicated matched the description of one of the
offenders, Waters admitted that he had been involved. Waters
3
Monique McAlister is the defendant David McAlister's
niece. She also is referred to as Monic McAlister in the
record.
3
No. 2014AP2561
told Warmington that McAlister had planned the robbery at Title
Loan and served as the getaway driver. Waters described in
detail the location of and the interior of McAlister's home,
including where the gun used in the Title Loan robbery could be
found.
¶7 Upon his arrest, Jefferson told police that McAlister
had planned each of the December robberies, served as the
getaway driver and provided the gun he carried at the Credit
Union. Based on the information obtained from Waters and
Jefferson, police obtained a search warrant for McAlister's
residence, where they found a .22-caliber handgun. McAlister,
who is a convicted felon, was arrested.
¶8 At McAlister's trial, Waters testified on behalf of
the State. He testified that shortly before December 28, 2004,
McAlister had driven Waters to Title Loan, where he instructed
Waters how to conduct the robbery. On December 28, McAlister
picked up Waters in a gray Hyundai, a picture of which was
received as Exhibit 4 and then picked up Monique and Jefferson.
¶9 After testifying that the gun the police took from
McAlister's house, which had been marked as Exhibit 11, was
"very familiar," Waters described the robbery itself. On cross-
examination, defense counsel repeatedly attacked Waters'
credibility. Defense counsel hammered on Waters' history of
lying to police, calling attention to Waters' initial statements
to police after his March 2005 arrest.
Q. You denied that you robbed the Open Pantry?
4
No. 2014AP2561
A. Yes.
Q. You told them: No, I didn't. I had no
involvement with that?
A. Yes.
Q. Then they told you that they had video of
the robbery?
A. Yes.
Q. And that they believed you were the guy that
did it?
A. Right.
. . . .
Q. You knew then that the detectives had solid
evidence establishing that you had committed an armed
robbery?
A. Yes.
Q. At that point in time, you asked the
detectives: What am I looking at?
A. Right.
Q. And by that you meant, how much prison time
am I going to get for having done this armed robbery?
A. Yeah.
Q. Then you asked them, quote, what can I tell
you to help me, right?
A. If I -- yeah. If I did, instinct I did
because I knew that I was in trouble. I didn't know,
you know, what was really going on. So you know,
yeah, I was looking for help.
. . . .
Q. You are willing to lie to keep yourself out
of jail?
5
No. 2014AP2561
A. Well, out of instinct because I've -- I've
been arrested so many times, 13 times, and when they -
- when I seen that I was in trouble, of course, yes.
I -- I didn't want to be in trouble. I was trying to
talk my way out of it, yes.
. . . .
Q. Now, the whole reason that you started to
ask them about what you could do to help yourself and
will they give me a break if I tell something, is you
wanted to make a deal, right?
A. No. I knew that by being honest -- because
I've dealt with the court system for so long, I knew
if I was being honest, that things would be easier on
me in the long run because the more you lie, the more
trouble you get into. So I wanted to clear things up
at that time.
. . . .
Q. Now, you are aware that in
November . . . November 10th, of 2003, you came into
contact with police at that point. It was an Officer
Stehlow who had asked you your name, and at that point
in time you told him your name was Steve Jordan,
correct?
A. I don't remember that.
[Defense counsel refreshes Waters' recollection].
Q. Okay. Now that you've reviewed that, you
recall that in November of '03, you were confronted by
this police officer?
A. Yes. And I obstructed by telling him a
different name, yes.
. . . .
Q. Now, on October 30th, of 1998, do you recall
being again confronted by the police and identifying
yourself as Steve Morris, with a date of birth 12/6 of
'68?
[Defense counsel refreshes Waters' recollection].
6
No. 2014AP2561
A. I obstructed. I gave a false name.
. . . .
Q. On July 19th, of 1998, do you recall having
been confronted by the police and identifying yourself
as Marcus L. Booker, date of birth 12/16 of '69?
A. Not that I recall.
[Defense counsel refreshes Waters' recollection].
Q. Okay. You agree with me that on this day
you lied to the police, gave them the name Marcus
Booker, date of birth 11/18/69?
A. Yes.
Q. And again, the whole reason that you lied
was to try to keep yourself out of jail?
A. Yes.
Q. That's something that you are willing to do?
A. At those moments, yes.
Q. But not at this moment?
A. Those were the past. This is the future.
Q. When did the future begin?
A. The day that I got arrested.
Q. So for the first time in your career, first
time in your adult life that you decided that things
were going to be different and now you're going to
tell the truth, was when you were arrested by
Investigator Warmington and Investigator Diener?
A. Yes.
¶10 On re-cross, defense counsel suggested that because
Waters now faced 154 years total incarceration, he had a very
big incentive to implicate McAlister. Waters denied that he had
any knowledge of a deal.
7
No. 2014AP2561
Q. You understand that because you've agreed to
testify here today, that what the prosecutor is going
to do is he's somehow going to reduce your exposure?
A. No. I didn't know any of that.
Q. You were unaware that your lawyer had cut
this deal with the prosecutor?
A. No, no. I never -- no one ever brought me
anything about a deal to me, no.
Q. Your lawyer, who is sitting right there,
your position is he has never discussed with you the
fact that you have an agreement with the DA?
A. No.
¶11 The following day, however, the court read this
stipulation to the jury:
The State of Wisconsin by Assistant District
Attorney James Newlun and defendant David McAlister
personally and by attorney Patrick K. Cafferty hereby
agree that the following is true. One, the District
Attorney's office has agreed that it would reduce the
maximum sentence Alphonso Waters faces by either
dismissing some of his charges or reducing the
seriousness of the charges.
Two, the District Attorney's office has agreed to
recommend that Alphonso Waters should serve less
prison time than it would have recommended if Alphonso
Waters had not testified in the trial of David
McAlister.
And three, Assistant District Attorney James
Newlun conveyed the terms of this agreement to
Alphonso Waters through his attorney Douglas Pachucki
sometime prior to Waters testifying on January 23rd,
2007.
¶12 Jefferson also testified on behalf of the State.
During his questioning by the assistant district attorney,
8
No. 2014AP2561
Jefferson admitted that he had a plea bargain with the State and
the terms of that bargain.
¶13 Jefferson admitted that he and Monique attempted to
rob the Credit Union. He said that McAlister had driven them to
and from the Credit Union in a four-door gray Hyundai, a picture
of which was received as Exhibit 5. He said that McAlister
provided the .22 semiautomatic handgun that he carried, which he
identified as Exhibit 11.
¶14 Jefferson also testified about the Title Loan armed
robbery. Jefferson stated that on that day, in the same
vehicle, McAlister drove Jefferson, Waters and Monique to Title
Loan to commit the robbery. After the robbery, McAlister drove
the four of them back to his apartment, which Jefferson
described consistently with Waters' earlier description given to
police.
¶15 When questioned by police, Jefferson stated that he
had originally lied, but later told the truth about the two
robberies. Jefferson testified that at the time of his arrest
he was aware that Waters had also been arrested because
McAlister had told him as much. McAlister had told Jefferson,
"Don't say nothing about the robberies; and if I did, that he'll
make my life a living hell."
¶16 On cross-examination, defense counsel stressed that
the effect of the plea agreement between Jefferson and the State
was that Jefferson's imprisonment exposure was reduced from 60-
plus years to 20 years. As he did with Waters, defense counsel
9
No. 2014AP2561
drew attention to Jefferson's past lies to police to avoid going
to jail.
¶17 At the conclusion of testimony, the circuit court read
the following jury instructions regarding witnesses' testimony:
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. In determining the credibility of
each witness and the weight you give to the testimony
of each witness, consider these factors.
Whether the witness has an interest or lack of
interest in the result of this trial; the witness's
conduct, appearance and demeanor on the witness stand;
the clearness or lack of clearness of the witness's
recollections; the opportunity the witness had for
observing and for knowing the matters that the witness
testified about; the reasonableness of the witness's
testimony; the apparent intelligence of the witness;
bias or prejudice, if any, that has been shown;
possible motives for falsifying testimony; and all
other facts and circumstances during the trial which
tend either to support or to discredit the testimony.
. . . .
You have heard testimony from Alphonso Waters and
Nathan Jefferson who stated that they were involved in
the crimes charged against the defendant. You should
consider this testimony with caution and great care,
giving to it the weight that you believe it is
entitled to receive. You should not base a verdict of
guilty upon it alone unless after consideration of all
the evidence, you are satisfied beyond a reasonable
doubt that the defendant is guilty.
You have heard testimony from the two witnesses
Alphonso Waters and Nathan Jefferson who have received
consideration for their testimony. These witnesses,
like any other witness, may be prosecuted for
testifying falsely. You should consider whether
receiving consideration affected the testimony and
10
No. 2014AP2561
give the testimony the weight that you believe it is
entitled to receive.
¶18 Following deliberations, McAlister was found guilty of
attempted armed robbery with use of force in violation of Wis.
Stat. § 943.32(2), armed robbery with threat of force in
violation of § 943.32(2) and possession of a firearm by a felon
in violation of Wis. Stat. § 941.29(2).
¶19 In May 2008, McAlister moved for a new trial, arguing
that (1) the State failed to provide full disclosure of the
terms of agreements struck between the State and Waters and
Jefferson; (2) the jury was not informed that Waters' and
Jefferson's plea offers were "performance based" or otherwise
contingent on their value to the State; (3) the State failed to
correct Waters' alleged perjury; (4) the real controversy was
not fully tried because the jury did not hear testimony from
alibi and other witnesses; and (5) McAlister had received
ineffective assistance of counsel because defense counsel failed
to introduce alibi and exculpatory evidence. His motion was
denied following an evidentiary hearing on October 23, 2008.
¶20 On May 19, 2014, McAlister filed the motion for
postconviction relief under Wis. Stat. § 974.06 that is now
before us, claiming that he had newly discovered evidence. In
support of his motion, McAlister submitted affidavits of three
men who claimed that Jefferson and Waters admitted prior to
trial that they intended to falsely accuse McAlister of
involvement in crimes in order to reduce their own punishment.
11
No. 2014AP2561
¶21 Wendell McPherson ("McPherson") swore that in March
2006, while he and Waters were incarcerated at Dodge
Correctional Institution, Waters told McPherson that "he lied
and told the police that, David McCallister [sic] planned these
armed robberies, [and] also said he lied and told police that
David McCallister [sic] gave him the gun to use and [] drove the
get away car." Waters also allegedly told McPherson that while
he was in Racine County Jail, he wrote Jefferson explaining what
to say to police. The attestation of McPherson's affidavit
occurred March 22, 2013, seven years after the alleged
conversations with Waters took place.
¶22 Corey Prince ("Prince") swore that between January 4,
2006 and May 25, 2007, while he and Jefferson were in the Racine
County Jail, Jefferson told him that his co-defendant, Alphonso
"Bird" Waters, had instructed him on exactly what to say
regarding their pending charges. Jefferson allegedly told
Prince that "the older man was never involved in any of the
robberies they committed[, and] 'Bird' instructed him to lie so
that they could receive a shorter sentence." Prince said that
in 2012 he met McAlister at the Waupun Correctional Institution.
Prince said he overheard McAlister talking about his case, and
how two men named "Nate" and "Bird" had framed him. Prince then
approached McAlister and told McAlister what he knew. Prince's
affidavit was attested to on August 8, 2012, between five and
one-half and six years after the alleged conversation with
Jefferson took place.
12
No. 2014AP2561
¶23 Antonio Shannon ("Shannon") swore that on December 28,
2004, he and a woman were sitting in his car across from Title
Loan. They saw a hooded man running towards them, followed by
police sirens. Two years later, Shannon was housed in the
Racine County Jail with Jefferson. Jefferson told Shannon of
his involvement in the Title Loan robbery. Shannon said that
Jefferson told him that he and a man named "Bird" were the only
two people involved in the robbery, but that he had an "out,"
which was a plea deal if he testified against "someone he said
was not involved in the robbery." The attestation was signed on
September 25, 2013, seven years after the alleged conversation
took place.
¶24 McAlister argued, pro se, that he was entitled to a
new trial as a matter of due process. The circuit court denied
McAlister's motion without an evidentiary hearing. The court of
appeals affirmed. We granted review, appointed counsel for
McAlister, and now affirm the court of appeals.
II. DISCUSSION
A. Standard of Review
¶25 The issue in this case is whether McAlister's Wis.
Stat. § 974.06 motion for a new trial is sufficient to entitle
him to an evidentiary hearing based on a newly discovered
evidence claim. To decide that question, "[f]irst, we determine
whether the motion on its face alleges sufficient facts that, if
true, would entitle the defendant to relief." State v. Allen,
2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. We review
13
No. 2014AP2561
this question of law, independently, based on the specific
factual allegations made and the record as a whole. State v.
Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996).
¶26 Second, "if the motion does not raise facts sufficient
to entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief," the decision to grant or
deny a hearing is within the circuit court's discretion. Allen,
274 Wis. 2d 568, ¶9. "A circuit court erroneously exercises its
discretion when it applies an incorrect legal standard to newly-
discovered evidence." State v. Plude, 2008 WI 58, ¶31, 310
Wis. 2d 28, 750 N.W.2d 42 (citing State v. McCallum, 208 Wis. 2d
463, 474, 561 N.W.2d 707 (1997)).
B. General Principles
1. Perjury concerns
¶27 The gravamen of McAlister's argument is that Waters
and Jefferson perjured themselves at his trial when they
testified that he was involved in armed robberies. At the
outset, we emphasize that "the crime of perjury erodes the
integrity of our judicial system." State v. Canon, 2001 WI 11,
¶9, 241 Wis. 2d 164, 622 N.W.2d 270. Its effect is profound
whether the perjury is in trial testimony or in affidavits
submitted to the court. This is so because "[i]t is fundamental
to the American system of jurisprudence that a witness testify
truthfully. Without truthful testimony, it is nigh onto
impossible to achieve the primary goal of our judicial system,
14
No. 2014AP2561
justice." State v. Rivest, 106 Wis. 2d 406, 416-17, 316
N.W.2d 395 (1982); see also United States v. Mandujano, 425 U.S.
564, 576 (1976) ("Perjured testimony is an obvious and flagrant
affront to the basic concepts of judicial proceedings.
Effective restraints against this type of egregious offense are
therefore imperative.").
¶28 However, whether to grant a hearing on a Wis. Stat.
§ 974.06 motion for a new trial based on newly discovered
evidence that claims to uncover perjured trial testimony
requires careful examination of the movant's specific factual
allegations in the context of the record as a whole. Zillmer v.
State, 39 Wis. 2d 607, 612-13, 159 N.W.2d 669 (1968).
Furthermore, in a § 974.06 motion, the burden shifts to the
defendant who must show the need for a postconviction
evidentiary hearing with a clearly articulated justification.
State v. Balliette, 2011 WI 79, ¶58, 336 Wis. 2d 358, 805 N.W.2d
334.
2. Postconviction motions
¶29 "After the time for appeal or postconviction remedy
provided in Wis. Stat. § 974.02 has expired, a prisoner in
custody under sentence of a court may bring a motion to vacate,
set aside, or correct a sentence, utilizing the procedure set
out in Wis. Stat. 974.06." Id., ¶34 (citing State v. Allen,
2010 WI 89, ¶22, 328 Wis. 2d 1, 786 N.W.2d 124). Under
§ 974.06(1), a prisoner may make such a motion where he or she
is claiming that: (1) his sentence was imposed in violation of
15
No. 2014AP2561
the constitution; (2) the court imposing the sentence was
without jurisdiction; (3) the sentence was in excess of the
maximum; or (4) the sentence is otherwise subject to collateral
attack. Id.
¶30 McAlister argues that his motion is a matter of due
process. The State, however, argues that claims of actual
innocence based on newly discovered evidence do not fall into
any of the permissible categories under Wis. Stat. § 974.06.
The State raises an interesting issue given the facts presented;
however, we do not decide this issue because the State did not
present it to the circuit court, to the court of appeals or in
its response to the petition for review. Accordingly, we deem
the issue forfeited. See State v. Hendricks, 2018 WI 15, ¶32,
379 Wis. 2d 549, 906 N.W.2d 666.
3. Newly discovered evidence
¶31 If a judgment is to be set aside based on newly
discovered evidence, the defendant must provide sufficient
evidence to establish that defendant's conviction is a manifest
injustice. Plude, 310 Wis. 2d 28, ¶32. To obtain an
evidentiary hearing for such an allegation, a defendant must
show specific facts that are sufficient by clear and convincing
proof, when considered in the context of the record as a whole,
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. Avery, 345 Wis. 2d 407, ¶25;
16
No. 2014AP2561
State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62
(citing State v. Armstrong, 2005 WI 119, ¶161, 283 Wis. 2d 639,
700 N.W.2d 98); see also State v. Machner, 92 Wis. 2d 797, 805-
06, 285 N.W.2d 905 (1979); McCallum, 208 Wis. 2d at 473.
¶32 If a defendant satisfies those four criteria, then
"the circuit court must determine whether a reasonable
probability exists that a different result would be reached in a
trial." Avery, 345 Wis. 2d 407, ¶25 (citing McCallum, 208
Wis. 2d at 473). "A reasonable probability of a different
result exists if there is a reasonable probability that a jury,
looking at both the old and the new evidence, would have a
reasonable doubt as to the defendant's guilt." Id. (citing
Love, 284 Wis. 2d 111, ¶44).
¶33 A claim of newly discovered evidence4 that is based on
recantation also requires corroboration of the recantation with
additional newly discovered evidence. McCallum, 208 Wis. 2d at
476. As we have explained, "[r]ecantations are inherently
unreliable." Id. (citing Dunlavy v. Dairyland Mut. Ins. Co., 21
Wis. 2d 105, 114, 124 N.W.2d 73 (1963)). Therefore,
corroboration requires newly discovered evidence that "(1) there
is a feasible motive for the initial false statement; and,
(2) there are circumstantial guarantees of the trustworthiness
of the recantation." Id. at 478; see also Zillmer, 39 Wis. 2d
4
Although as we explain below, the evidence at issue does
not fully meet the definition of recantation evidence, a
corroboration analysis does provide a useful framework for
discussing the evidence presented.
17
No. 2014AP2561
at 616 (concluding that "a new trial may be based upon an
admission of perjury if the facts in the affidavit are
corroborated by other newly discovered evidence").
C. Application
1. Cumulative
¶34 It is clear that McAlister has satisfied the first
three requirements necessary to secure an evidentiary hearing
based on newly discovered evidence.5 However, whether the
affidavits satisfy the fourth requirement necessary to qualify
as newly discovered evidence is unclear; i.e., whether the
affidavits are cumulative of trial evidence that attacked
Jefferson's and Waters' credibility.
¶35 The court of appeals concluded that the affidavits
submitted by McAlister were "merely an attempt to retry the
credibility of Waters and Jefferson, whose credibility was well-
aired at trial." State v. McAlister, No. 2014AP2561,
unpublished order (Wis. Ct. App. Aug. 10, 2016).
¶36 McAlister asks us to ignore the court of appeals'
decision and recognize that the State has conceded that
McAlister met the first four requirements of his newly
5
The first three requirements are: (1) the evidence
contained in the written affidavits was not discovered until
after McAlister's conviction; (2) McAlister was not negligent in
failing to seek this evidence; and (3) the affidavits are
material to whether McAlister participated in the armed
robberies. State v. Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407,
826 N.W.2d 60.
18
No. 2014AP2561
discovered evidence claim.6 However, whether alleged newly
discovered evidence is cumulative forms part of our legal
determination of whether a jury considering the old and new
evidence would have a reasonable doubt as to McAlister's guilt.
Avery, 345 Wis. 2d 407, ¶25. We are not required to accept the
State's concession. State v. Gomaz, 141 Wis. 2d 302, 307-08,
414 N.W.2d 626 (1987). Accordingly, we do not.7
¶37 We have long held that newly discovered evidence that
is merely cumulative is not grounds for a new trial. Lock v.
State, 31 Wis. 2d 110, 116, 142 N.W.2d 183 (1966). Newly
discovered evidence is cumulative where it tends to address "a
fact established by existing evidence." State v. Thiel, 2003 WI
111, ¶78, 264 Wis. 2d 571, 665 N.W.2d 305 (citing Washington v.
Smith, 219 F.3d 620 (7th Cir. 2000)); see also Wilson v. Plank,
41 Wis. 94, 98 (1876) (stating that newly discovered evidence in
the form of witness testimony is merely cumulative where it
"tends to prove propositions of fact which were litigated at
trial").
¶38 Notwithstanding the above principles applicable to
evaluating newly discovered evidence, defining when such
6
"The State concedes that McAlister has met the first four
requirements [for newly discovered evidence]." State's Br., 18
n.5.
7
We are always disappointed when counsel concedes a
difficult issue, as counsel for the State has done here. The
sorting out of difficult legal questions is where we most need
counsel's thoughtful assistance.
19
No. 2014AP2561
evidence is cumulative is difficult because the definition of
cumulative evidence turns to some degree on how the trial issue
is described. For further guidance, we look to federal courts,
who also evaluate when newly discovered evidence is cumulative.
See 33 Fed. R. Crim. P.
¶39 In regard to motions for a new trial based on newly
discovered evidence, the United States Supreme Court has long
concluded that newly discovered evidence that is cumulative will
not support a motion for a new trial. The Court has defined
cumulative evidence as, "additional evidence of the same general
character, to some fact or point, which was subject of proof
before." Southard v. Russell, 57 U.S. 547, 554 (1853).
Recantation testimony is often termed cumulative because it
"serves merely to impeach cumulative evidence rather than to
undermine confidence in the accuracy of the conviction."
Dobbert v. Wainwright, 468 U.S. 1231, 1234 (1984). Where the
credibility of a prosecution witness was tested at trial,
evidence that again attacks the credibility of that witness is
cumulative. United States v. Champion, 813 F.2d 1154, 1171
(11th Cir. 1987) (concluding that evidence bearing on the
credibility of a witness impeached at trial is cumulative).
¶40 Here, McAlister submitted a 2012 affidavit from Prince
about statements he claims that Jefferson made to Prince prior
to May 25, 2007; a 2013 affidavit from Shannon in which Shannon
relates what he says that Jefferson told him in 2006; and a 2013
affidavit from McPherson about statements he claims to have
20
No. 2014AP2561
heard Waters make in 2006. Each affiant swears that, at some
point prior to McAlister's January 2007 trial, Jefferson or
Waters admitted their plan to perjure themselves at trial to
secure a plea bargain that would provide less imprisonment for
crimes to which they pled.
¶41 Jefferson testified to the attempted armed robbery of
the Credit Union, which he said that McAlister planned.
Jefferson said that he and McAlister's niece, Monique,
participated in that attempted robbery. He testified that
McAlister drove him and Monique to the Credit Union in a four-
door gray Hyundai. He said that McAlister instructed him to
carry a .22 semiautomatic handgun, which McAlister provided.
¶42 Jefferson also described the armed robbery of Title
Loan, in which he, Waters and Monique participated. Jefferson
said that McAlister again drove the participants to the scene of
the robbery in a gray Hyundai. Jefferson testified that Waters
carried the same gun that McAlister had provided to him for the
attempted robbery of the Credit Union. After the Title Loan
robbery, Jefferson described going to McAlister's house, which
was a two-family house where McAlister had the upper floor
apartment.
¶43 Jefferson testified that he was offered
"consideration" from the district attorney's office for
providing truthful testimony about the robberies. Jefferson
confirmed that he had been charged with an armed robbery and an
attempted armed robbery. He said that if he pled to attempted
21
No. 2014AP2561
armed robbery and testified at trial, the armed robbery would be
read-in, the sentence enhancers would be dismissed and the State
would recommend less prison time. Jefferson further explained
that before he had a plea offer he had relayed the same
information about the robberies and McAlister's involvement to
police. He had asked them for consideration for his testimony
and the officers said they could not do that.
¶44 On cross-examination, Jefferson acknowledged that the
effect of his plea agreement was to reduce his exposure for
imprisonment from a potential maximum of 60 years to a potential
maximum of 20 years. He also acknowledged that the district
attorney would recommend less prison time because he cooperated.
Jefferson said that he was on probation or extended supervision
when he committed the crimes, and that he cooperated with the
officers because he was concerned about his probation getting
revoked and he thought that they might help him.
¶45 Before the jury, both the prosecutor and McAlister's
attorney repeatedly probed Jefferson's credibility and fully
laid out the terms of the plea agreement that Jefferson believed
he had been offered for testifying against McAlister. The jury
had to consider whether Jefferson had testified truthfully, or
whether his testimony was in response to the State's offer of a
lower sentence on his convictions if he testified against
McAlister.
¶46 Both Prince's and Shannon's affidavits assert that
McAlister was not involved in armed robberies with Jefferson,
22
No. 2014AP2561
and that Jefferson framed him to get a plea bargain that would
yield a favorable sentencing recommendation. These allegations
are of the same general character, and to the same point for
which testimony was elicited at trial, i.e., whether Jefferson's
testimony that McAlister was involved in the armed robberies was
truthful or whether he testified falsely to get a favorable plea
bargain.
¶47 Moving on to McPherson's affidavit, it focuses on
Waters' testimony and asserts that Waters lied about McAlister's
involvement in the armed robberies to get a favorable plea
bargain. As with Jefferson, Waters was questioned repeatedly
about the specifics of McAlister's involvement, from getting
picked up in McAlister's gray Hyundai, to picking up Jefferson
and Monique, to providing the .22 semiautomatic gun that Waters
carried.
¶48 McAlister's attorney questioned Waters about his
repeated lying to authorities on many occasions, in regard to
other matters as well as in regard to armed robberies. He
attempted to show that Waters did not have a character for
truthfulness, but rather, lied whenever it suited his purposes.
He also elicited Waters' agreement that he talked to police
officers and was testifying against McAlister with the hope of
receiving a lesser sentence for the crimes to which he pled.
¶49 Waters acknowledged that he faced substantial
imprisonment for the crimes to which he pled and that he hoped
his testimony at McAlister's trial would help him. Once again,
23
No. 2014AP2561
the statements attributed to Waters in McPherson's affidavit are
additional statements of the same general character and to the
same point that was subject to proof at trial: Waters is a
repetitive liar; his testimony that McAlister was involved in
the robbery is not believable. The jury heard it all before.
The McPherson affidavit is cumulative because it was drawn to
the same point, i.e., that Waters' testimony was given in
exchange for a lesser sentence for his own crimes. This is the
same evidence that was presented to the jury.
¶50 Accordingly, given the testimony at trial, the three
affidavits were of the same general character and drawn to the
same point, Jefferson and Waters lied about McAlister to benefit
themselves; therefore, the affidavits are cumulative. McAlister
did not satisfy the fourth requirement necessary to qualify as
newly discovered evidence.
¶51 Our conclusion that the affidavits of McPherson,
Prince and Shannon are merely cumulative evidence of the same
general character and drawn to the same point for which proof
was provided at trial, i.e., that Jefferson and Waters lied to
benefit themselves, is sufficient to affirm the court of
appeals. See Avery, 345 Wis. 2d 407, ¶25. However, because the
second issue is argued as a recantation issue, which has been
uniquely framed and fully briefed, we continue.
2. Corroboration
¶52 The affidavits of McPherson, Prince and Shannon, all
of which were attested to years after McAlister's trial, aver
24
No. 2014AP2561
that Jefferson and Waters said that they intended to lie at
McAlister's trial.8 Jefferson and Waters allegedly said that
they were going to implicate McAlister in robberies in which he
did not participate so that they could take advantage of plea
bargains regarding robberies in which Jefferson and Waters
admitted participation.
¶53 In the usual presentation, a recantation occurs when a
witness formally or publically withdraws or renounces prior
statements or testimony. Black's Law Dictionary 1382 (9th ed.
2009). However, it is argued here that the affidavits presented
after McAlister's trial contain recantation testimony, even
though the witnesses' statements allegedly were made before they
testified at trial.
¶54 The evidence here differs from classic recantation
testimony in the temporal sense described above and also because
there was no formal or public renunciation of Jefferson's or
Waters' testimony. Instead, the statements allegedly were made
while Jefferson and Waters were incarcerated with one or more of
the affiants, who relayed the statements. There is no writing
signed by either Jefferson or Waters.
¶55 However, the affidavits bear a similarity to
recantation evidence in that they use what is claimed to be
Jefferson's and Waters' own words to allege they lied at trial.
Stated otherwise, as with classic recantation, the witnesses'
8
McPherson alleges to have spoken with Waters; Prince and
Shannon allege to have spoken with Jefferson.
25
No. 2014AP2561
statements are presented after the witnesses' trial testimony
and attack the veracity of the witnesses' own testimony.
¶56 When testimony that is classic recantation testimony
is presented as newly discovered evidence, we require that the
alleged recantation "be corroborated by other newly discovered
evidence." McCallum, 208 Wis. 2d at 476. "Corroboration is
required because recantation is inherently unreliable; the
recanting witness is admitting he or she lied under oath.
Either the original testimony or the recantation is false."
Gehin v. Wis. Grp. Ins. Bd., 2005 WI 16, ¶98, 278 Wis. 2d 111,
692 N.W.2d 572. We conclude that no less should be required as
we assess the affidavits presented in the case before us.
¶57 As explained above, when newly discovered evidence is
based on recantation, the defendant must satisfy an additional
proof. "[N]ewly discovered recantation evidence must be
corroborated by other newly discovered evidence." McCallum, 208
Wis. 2d at 476. "[T]he degree and extent of the corroboration
required varies from case to case based on its individual
circumstances." Id. at 477; see, e.g., Rohl v. State, 64
Wis. 2d 443, 453, 219 N.W.2d 385 (1974) (citing Zillmer, 39
Wis. 2d at 616).
¶58 Corroboration requires newly discovered evidence of
both: (1) a feasible motive for the initial false statement;
and (2) circumstantial guarantees of the trustworthiness of the
recantation. McCallum, 208 Wis. 2d at 477-78.
26
No. 2014AP2561
¶59 Here, McAlister has failed both corroboration
requirements. First, he has failed to present newly discovered
motives for Jefferson's and Waters' initial testimony, which he
claims is false. Jefferson and Waters clearly wanted to obtain
plea bargains that would reduce their imprisonment time, but
this motive was fully explored at trial and is not newly
discovered.
¶60 Second, McAlister has not provided newly discovered
evidence to support circumstantial guarantees of trustworthiness
of the affiants or of the alleged statements. To the contrary,
the length of time that passed between McAlister's trial and the
submission of the affidavits cuts against concluding that the
affidavits are trustworthy. Herrera v. Collins, 506 U.S. 390,
417 (1993) (concluding that "[n]o satisfactory explanation has
been given as to why the affiants waited until the 11th
hour . . . to make their statements."). Here, McPherson, Prince
and Shannon waited between five and one-half and seven years
after Jefferson and Waters allegedly said that they were going
to commit perjury. No newly discovered evidence supports this
delay.
¶61 Furthermore, as the Seventh Circuit has noted,
recantations made while in jail are "highly suspicious." United
States v. Walker, 25 F.3d 540, 549 (7th Cir. 1994). Here,
Jefferson and Waters were incarcerated when they allegedly said
they were going to frame McAlister. Also of interest, all three
affiants were incarcerated, and two, McPherson and Shannon, had
27
No. 2014AP2561
been sentenced to life without the possibility of parole.
Accordingly, they could face no actual, additional incarceration
if found guilty of perjury for the affidavits they signed. And
finally, none of the affidavits mentions Monique, McAlister's
niece, and Shannon's affidavit affirmatively asserts that
Jefferson told him that he and Waters were the only participants
in the robberies. However, trial testimony clearly shows
Monique's active participation in the robberies.
¶62 McAlister argues that despite the lack of newly
discovered evidence supporting circumstantial guarantees of
trustworthiness, the three affidavits satisfy an alternative
means of showing corroboration. Specifically, McAlister argues
that the three affidavits corroborate each other because they
agree as to the basic facts: (1) McAlister was not involved in
the charged robberies; and (2) Jefferson and Waters nonetheless
sought to frame him for those robberies to reduce the
consequences of their own misconduct. We are not persuaded.
The three partially-overlapping affidavits do not fulfill the
standards set forth in McCallum and all suffer from the same
lack of a newly discovered evidence of motive for Jefferson and
Waters to lie, as well as the same deficits in regard to
trustworthiness.
¶63 Accordingly, we conclude that the alleged statements
of Jefferson and Waters that attempt to withdraw the
truthfulness of their testimony at McAlister's trial have not
been corroborated. Therefore, the circuit court had sound
28
No. 2014AP2561
reasons to exercise its discretion and to deny McAlister's
motion for a new trial without an evidentiary hearing. Avery,
345 Wis. 2d 407, ¶22.
III. CONCLUSION
¶64 We conclude that the affidavits were merely cumulative
evidence because they were additional evidence of the same
general character as was subject to proof at trial, i.e.,
Jefferson and Waters lied when they implicated McAlister in
order to achieve favorable plea bargains for themselves. We
also conclude that the affidavits were insufficient to require
the circuit court to hold a hearing on McAlister's motion for a
new trial because they were supported by neither newly
discovered corroborating evidence or circumstantial guarantees
of trustworthiness. Therefore, the circuit court did not
erroneously exercise its discretion when it denied McAlister's
motion for a new trial without an evidentiary hearing.
Accordingly, we affirm the court of appeals' affirmance of the
circuit court.
By the Court.—The decision of the court of appeals is
affirmed.
29
No. 2014AP2561.dk
¶65 DANIEL KELLY, J. (concurring). I join the court's
opinion except for its conclusion that the evidence offered by
Mr. McAlister is cumulative. I agree with the court's
observation that "defining when such evidence is cumulative is
difficult," majority op., ¶38, but a fairly straightforward test
can establish that the evidence here cannot be so characterized.
¶66 The point of evidence is to give the trier of fact the
raw material upon which to exercise his judgment in deciding
whether a particular fact is true. We presume he will act in
good faith, and will conclude that a fact is true if presented
with sufficient credible evidence. It's easy enough to say that
anything beyond this quantum is cumulative. The tricky part is
determining whether new evidence is cumulative when the fact
finder has already determined the old evidence was insufficient
to establish the contested fact.
¶67 There is, however, a test that can unmistakably
identify new evidence as non-cumulative, and we should have
applied it here. It is this: If the trier of fact were to
believe the new evidence, would he necessarily conclude the
disputed fact has been established? If so, then the new
evidence cannot possibly be cumulative because it is capable of
producing a result the old evidence did not. I suspect it will
be a rare piece of information that will satisfy this criterion,
in which case other "cumulativeness" tests may be employed. But
evidence that does meet this standard definitively answers the
cumulativeness question.
1
No. 2014AP2561.dk
¶68 Mr. McAlister has presented such information here. At
trial, he introduced evidence suggesting that Messrs. Jefferson
and Waters had a strong motivation to falsely accuse him of
involvement in the crimes. The jurors could have believed this
evidence——that is, they could believe the witnesses had good
reason to lie——and nonetheless conclude that, upon the event,
they told the truth. The result of the trial suggests this is,
in fact, what they did.
¶69 Mr. McAlister's new evidence is not of the same
nature. The affidavits he now presents claim that Messrs.
Jefferson and Waters admitted they made up a story about Mr.
McAlister's involvement in the crimes. If the jurors were to
credit this new evidence, they could not simultaneously believe
that Messrs. Jefferson and Waters' trial testimony was truthful.
That is to say, the new evidence is capable of producing a
result the old evidence did not. Therefore, it cannot be
cumulative.
¶70 Nevertheless, I agree with the court's conclusion that
this evidence requires corroboration before Mr. McAlister is
entitled to an evidentiary hearing on his request for a new
trial. This new information is in the nature of "recantation"
evidence (for which we have always required corroboration), even
though it presents as a pre-existing decision to commit perjury
rather than a post hoc confession. The justification for
requiring corroboration is the same——the inherent unreliability
of what often looks like a grown-up version of Kipling's "just-
so" stories.
2
No. 2014AP2561.dk
¶71 There is one other aspect of the court's opinion that
bears comment. The court took the State to task for conceding
that Mr. McAlister's new evidence is not cumulative: "We are
always disappointed when counsel concedes a difficult issue, as
counsel for the State has done here." Id., ¶36 n.7. I
disagree.
¶72 One of the distinguishing characteristics of an
accomplished and wise advocate is knowing when to concede a
point. And, having come to the realization that a previously-
defended position is not actually defensible, it takes courage
and humility to say so. This is the type of candor we should be
encouraging, not condemning. Just because the court
(mistakenly, in my view) disagrees with the State's position
does not mean the State conceded for some reason other than its
professional, good faith assessment of the issue's merits. And
yet the court's rebuke implies that very thing. However,
institutional litigators (like the State) should make certain
that a concession truly is the result of a good faith assessment
of the issue's merits, and not an attempt to steer the court
away from issues it would prefer not to address.
¶73 I respectfully concur.
3
No. 2014AP2561-CR.awb
¶74 ANN WALSH BRADLEY, J. (dissenting). A jury found
David McAlister guilty of several crimes. Now, with sworn
affidavits in hand, he asserts that he has newly discovered
evidence that his accomplices planned in advance to lie on the
stand during his trial to falsely implicate him. The majority
denies him an evidentiary hearing on his claim that he "was not,
in fact, involved in the offenses for which he was
convicted . . . ."
¶75 The issue in this case is not whether McAlister's
conviction should be vacated, or whether he should receive a new
trial. It is merely whether he should be afforded the
opportunity for an evidentiary hearing on his postconviction
motion.
¶76 Our system of law has always operated under the theory
that it is better for ten guilty people to go free than one
innocent to languish in prison. See State v. Dubose, 2005 WI
126, ¶51 n.1, 285 Wis. 2d 143, 699 N.W.2d 582 (Butler, J.,
concurring); Furman v. Georgia, 408 U.S. 238, 367 n.158 (1972)
(Marshall, J., concurring) (quoting William O. Douglas, Foreward
to Jerome Frank & Barbara Frank, Not Guilty 11-12 (1957)); see
also In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J.,
concurring). Yet, the majority opinion strays from this
premise, favoring finality. What if McAlister's claims are
true? What if his witnesses are credible? We will never know
because the majority has short-circuited the process and there
will be no hearing.
1
No. 2014AP2561-CR.awb
¶77 Not only does the majority misstep by favoring
finality over a search for the truth, it also stumbles in three
significant ways. First, by refusing to accept the facts
alleged as true for purposes of determining whether McAlister is
entitled to an evidentiary hearing, the majority deviates from
our established case law. See State v. Balliette, 2011 WI 79,
¶18, 336 Wis. 2d 358, 805 N.W.2d 334; State v. Love, 2005 WI
116, ¶¶54-55, 284 Wis. 2d 111, 700 N.W.2d 62. Second, it errs
in determining that the new evidence is cumulative of that
already presented. Third, it attempts to fit a square peg into
a round hole by creating a false equivalency between recantation
evidence and the alleged newly discovered evidence at issue
here. I address each in turn.
I
¶78 This case revolves around McAlister's claim that his
accomplices lied on the stand during his trial. With his
postconviction motion, McAlister presented to the circuit court
the affidavits of three prison inmates——Wendell McPherson, Corey
Prince, and Antonio Shannon.
¶79 Each of the three inmates averred that he had contact
with one of McAlister's accomplices, Alphonso Waters or Nathan
Jefferson, prior to McAlister's trial. Most significantly, the
affidavits indicate that Waters and Jefferson stated that they
planned to lie in an effort to implicate McAlister.
2
No. 2014AP2561-CR.awb
A
¶80 The majority errs first by failing to adhere to
precedent. It denies McAlister a hearing when the facts,
accepted as true, indicate that McAlister is entitled to relief.
¶81 The question before us is whether McAlister is
entitled to an evidentiary hearing, giving him the opportunity
to establish that a reasonable probability exists that a
different result would be reached at trial. At this stage of
the proceedings, we must accept the facts alleged in McAlister's
motion as true. See Love, 284 Wis. 2d 111, ¶54. For our
purposes, it is not relevant whether the alleged newly
discovered evidence is admissible or whether it is credible.
Id.
¶82 A court is not to base its decision solely on the
credibility of the newly discovered evidence, unless it finds
the new evidence to be incredible as a matter of law. State v.
Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407, 826 N.W.2d 60.
Testimony is incredible as a matter of law or patently
incredible if it is in conflict with the uniform course of
nature or with fully established or conceded facts. State v.
Vollbrecht, 2012 WI App 90, ¶28 n.18, 344 Wis. 2d 69, 820
N.W.2d 443 (citation omitted).
¶83 Love, 284 Wis. 2d 111, presents facts very similar to
those here. In Love, the defendant was convicted of armed
robbery and subsequently filed a motion for a new trial based on
newly discovered evidence. Id., ¶¶19, 21. "Love included an
affidavit from Christopher Hawley, who claimed to have met
3
No. 2014AP2561-CR.awb
another inmate, Floyd Lindell Smith, Jr., while at Green Bay
Correctional Institution. Hawley averred that Smith admitted to
robbing [the victim] and shared in-depth details regarding the
incident." Id., ¶21. The circuit court denied the motion
without an evidentiary hearing. Id., ¶23.
¶84 This court remanded for an evidentiary hearing. Id.,
¶56. Like this case, Love turned on the reasonable probability
prong of the newly discovered evidence test. Id., ¶¶52-53. The
Love court accepted the facts as alleged in Love's
postconviction motion as true for purposes of its analysis:
Love's postconviction motion indicates that Hawley
would testify that Love was not the assailant. Hawley
will testify that Smith (or if Love can get Smith to
testify, then it would be Smith's testimony that he)
committed this crime. Whether that testimony is
ultimately admissible is not relevant for our purposes
here. Whether that testimony is credible is not
relevant for our purposes here. It must be accepted
as true.
Id., ¶54 (emphasis added).
¶85 Accepting Love's alleged facts as true, the court
determined that Love was entitled to an evidentiary hearing. It
explained:
If it is true, then the evidence against Love amounts
to [the victim's] identification against another's
assertion that Smith committed the crime. Thus,
viewing the new evidence, particularly in light of the
identification discrepancies, there is a reasonable
probability that a jury, looking at both, would have a
reasonable doubt as to Love's guilt.
Id., ¶55.
¶86 The only material factual difference between this case
and Love is the timing of the alleged statements——the affidavits
4
No. 2014AP2561-CR.awb
here relate to an admission of future perjury, while in Love the
affidavit related to an alleged admission to a past crime. In
both cases, the affiant was a fellow inmate. As in Love, I
would accept the alleged facts as true.
¶87 In his postconviction motion, McAlister alleged that
"[l]ong after McAlister's direct appeal and after he filed his
petition for writ of habeas corpus, he learned that Corey
Prince, Wendell McPherson and Antonio Shannon had information
confirming that McAlister was not involved in any robberies and
that the State's two key witnesses against him, Alphonso Waters
and Nathan Jefferson had conspired to frame McAlister in order
to obtain relief from their own sentences."
¶88 Instead of accepting McAlister's alleged facts as
true, the circuit court here stated orally that the affidavits
are "inherently not believable." In its written order, it
likewise concluded that they "have limited credibility." The
circuit court thus went well beyond its role at this stage of
proceedings, engaging in a personal, subjective assessment of
witness credibility rather than accepting the facts presented as
true.
¶89 The majority turns a blind eye to the circuit court's
error and again delves into the credibility of the affiants'
statements. In its misguided search for "circumstantial
guarantees of trustworthiness," the majority laments that "the
length of time that passed between McAlister's trial and the
submission of the affidavits cuts against concluding that the
affidavits are trustworthy." Majority op., ¶60. It further
5
No. 2014AP2561-CR.awb
decries the "highly suspicious" nature of jailhouse statements
made by those serving life sentences. Id., ¶61.
¶90 This inquiry goes beyond the court's role based on the
procedural posture with which we are presented. Properly
leaving a credibility determination for a later date, the
court's only determination here should be whether the McPherson,
Prince, and Shannon affidavits are incredible as a matter of
law.
¶91 I conclude that they are not. The statements are not
so outlandish as to be in conflict with the "uniform course of
nature." See Vollbrecht, 344 Wis. 2d 69, ¶28 n.18. Without an
evidentiary hearing we simply do not know if the affidavits are
credible. Accordingly, I would accept the alleged facts as true
and determine that McAlister should be afforded the opportunity
for an evidentiary hearing.
B
¶92 The majority errs next by determining that the newly
discovered evidence is merely cumulative of that already
presented. It reaches this conclusion because "[t]he jury heard
it all before." Majority op., ¶49. According to the majority,
the alleged newly discovered evidence is "of the same general
character and drawn to the same point for which proof was
provided at trial, i.e., that Jefferson and Waters lied to
benefit themselves[.]" Id., ¶51.
¶93 What was the "character" of the evidence offered? At
trial, both Jefferson and Waters were cross examined regarding
deals they made with the district attorney. See majority op.,
6
No. 2014AP2561-CR.awb
¶¶9-11, 16. In each case, the district attorney agreed to
recommend less prison time in exchange for their testimony.
Id., ¶¶11, 16. This evidence could certainly offer a motive for
Waters and Jefferson to lie and implicate McAlister, but it says
nothing about whether Waters and Jefferson in fact conspired to
frame McAlister.
¶94 In contrast, the affidavits of Prince, McPherson, and
Shannon, if true, offer direct evidence that Waters and
Jefferson conspired to lie.1 Direct evidence that Jefferson and
Waters planned to lie is of a different general character than
the circumstantial evidence of their motive to lie that was
presented at trial. As McAlister aptly states in his brief,
"evidence that Jefferson and Waters in fact conspired to frame
McAlister is not cumulative to evidence that they had a motive
to do so."
C
¶95 The majority's third error lies in its attempt to fit
a square peg into a round hole by creating a false equivalency
between recantation evidence and the alleged newly discovered
evidence in this case.
¶96 Recantations are inherently unreliable. State v.
McCallum, 208 Wis. 2d 463, 476, 561 N.W.2d 707 (1997) (citing
1
That there was no direct evidence of a conspiracy
presented at trial was repeatedly highlighted by the prosecutor
during closing argument. The State's closing argument was
peppered with statements such as, "[t]here's no evidence they
ever met and talked about it" and "there is no evidence they
ever even talked." If true, the McPherson, Prince, and Shannon
affidavits do provide such evidence.
7
No. 2014AP2561-CR.awb
Dunlavy v. Dairyland Mut. Ins. Co., 21 Wis. 2d 105, 114, 124
N.W.2d 73 (1963)). "The recanting witness is admitting that he
or she has lied under oath. Either the original sworn testimony
or the sworn recantation testimony is false." McCallum, 208
Wis. 2d at 476. This is the reason behind the corroboration
requirement for recantation testimony. Gehin v. Wis. Group Ins.
Bd., 2005 WI 16, ¶98, 278 Wis. 2d 111, 692 N.W.2d 572.
¶97 Contrary to the majority's assertion, the evidence at
issue here is not akin to recantation evidence. The alleged
"recantation" is not the product of the witnesses who are
alleged to have lied on the stand, Jefferson and Waters.
Rather, the alleged "recantation" statements are from three
individuals who did not previously testify in this case. By
definition, a recantation must consist of the witness
withdrawing or renouncing prior testimony. See McCallum, 208
Wis. 2d at 476. Neither Waters nor Jefferson has submitted an
affidavit recanting his trial testimony.
¶98 Consequently, the logic of the corroboration rule does
not hold here. As we explained in McCallum, in the recantation
situation "[t]he recanting witness is admitting that he or she
has lied under oath. Either the original sworn testimony or the
sworn recantation testimony is false." McCallum, 208 Wis. 2d at
467. Here, the alleged "recantations" of Jefferson and Waters
were not made under oath. There is no sworn "recantation"
testimony from the "recanters." The "either/or" situation
described in McCallum is not present here because Jefferson and
8
No. 2014AP2561-CR.awb
Waters each made only one statement under oath——his trial
testimony.
¶99 The statements at issue are better characterized as
prior inconsistent statements rather than a "recantation." A
prior inconsistent statement is not "inherently unreliable" as
is a recantation. To the contrary, a prior inconsistent
statement is reliable enough to constitute a non-hearsay
statement. See Wis. Stat. § 908.01(4)(a)1. The majority's
attempt to force the evidence here within the category of
"recantation" evidence is simply unconvincing.
II
¶100 If a Wis. Stat. § 974.06 motion raises sufficient
facts that, if true, show that the defendant is entitled to
relief, the circuit court must hold an evidentiary hearing.
Balliette, 336 Wis. 2d 358, ¶18. The sworn affidavits assert
that witnesses lied and McAlister maintains he was not involved
in the offense for which he was convicted. Accepting the facts
as alleged in McAlister's motion as true, I conclude that
McAlister has shown he is entitled to relief. I therefore would
reverse the court of appeals and remand to the circuit court for
an evidentiary hearing.
¶101 Accordingly, I respectfully dissent.
¶102 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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No. 2014AP2561-CR.awb
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