State v. Jenkins

Decision Date11 July 2014
Docket NumberNo. 2012AP–46–CR.,2012AP–46–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Jimothy A. JENKINS, Defendant–Appellant–Petitioner.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

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.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1 The defendant, Jimothy A. Jenkins, seeks review of an unpublished decision of the court of appeals affirming a judgment and order of the Circuit Court for Milwaukee County, Carl Ashley and Rebecca F. Dallet, Judges.1

¶ 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 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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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. 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 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.

¶ 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.

¶ 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

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...

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