State v. Freeman
| Decision Date | 05 May 2022 |
| Docket Number | 2020AP2130-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Rick D. Freeman, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.
Before Blanchard, P.J., Kloppenburg, and Graham, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 Rick Freeman appeals an order denying his motion for a new trial based on newly discovered evidence. We conclude that the circuit court properly denied the motion on the ground that there is not a reasonable probability of a different result on retrial. Therefore, we affirm.
¶2 In 2011, Freeman was convicted of first-degree intentional homicide by use of a dangerous weapon. In 2019, he moved for a new trial based on newly discovered evidence, specifically the testimony of a witness who had not testified at the trial. In 2020, the circuit court held an evidentiary hearing at which it heard the testimony of Freeman's new witness. The court then denied the motion on the ground that the new witness was not credible. Freeman appeals.
¶3 The circuit court concluded that the testimony of Freeman's new witness qualified as new evidence under the applicable four-part test. See State v. Avery, 2013 WI 13, ¶25, 345 Wis.2d 407, 826 N.W.2d 60. This conclusion is not disputed on appeal. If evidence meets that test, the circuit court next decides whether a reasonable probability exists that a different result would be reached in a trial with the new evidence. Id. This is a discretionary decision that we review for erroneous exercise of discretion. Id., ¶22.
¶4 On appeal, Freeman argues that the circuit court here could deny his motion based on a lack of credibility of the new witness only if it found the witness to be inherently incredible. We do not regard this as an accurate statement of law. We addressed this point directly in State v Carnemolla, 229 Wis.2d 648, 600 N.W.2d 236 (Ct. App. 1999). We concluded that the circuit court's assessment of credibility in deciding a motion based on newly discovered evidence is not limited to whether the witness is inherently incredible. Id. at 658-61. Instead, if the circuit court concludes that a jury would not find the new witness credible, that is the equivalent of a finding that there is no reasonable probability of a different outcome on retrial. Id. at 661.
¶5 Freeman argues that this conclusion in Carnemolla is inconsistent with other case law. We disagree. Freeman does not cite any case law clearly holding that the circuit court's assessment of credibility in the context of newly discovered evidence is limited to determining whether the evidence is inherently incredible.
¶6 One of the cases Freeman relies on involved a recantation by the alleged sexual assault victim. See State v McCallum, 208 Wis.2d 463, 561 N.W.2d 707 (1997). The supreme court stated that, because an assessment of the witness's credibility would be crucial to deciding whether the recantation would raise a reasonable doubt in the minds of a jury on retrial, a remand to the circuit court was necessary for a determination of the witness's credibility based in part on demeanor. Id. at 479-80. The opinion did not suggest that the recantation might be inherently incredible. Therefore, it is implicit in the McCallum decision and remand that the circuit court could properly deny the defendant's motion if the court found the witness not to be sufficiently credible, even if her recantation was not inherently incredible.
¶7 Freeman also relies on a statement by the supreme court that the circuit 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." Avery, 345 Wis.2d 407, ¶25 (citing McCallum). Freeman appears to interpret this statement as referring to inherent incredibility, but the word "inherently" is not used there. Therefore, we do not interpret A very as intending to state that a circuit court's use of credibility in this context is limited to deciding whether the new witness is inherently incredible. Instead, we understand the law to continue to be as stated and applied in Carnemolla and McCallum.
¶8 Having concluded that a circuit court may properly base its denial on a finding that a new witness is not credible, even if the witness is not inherently incredible, we turn to whether the court's decision here was proper on the facts of this case.
¶9 Freeman argues that we are not obligated to defer to the circuit court's determination of his new witness's credibility, but his argument is not supported by case law. Freeman describes McCallum as having "ignored" a finding by the circuit court in that case that the victim's recantation was less credible than her original statement, but that is not an accurate description. Although the supreme court in McCallum stated that the circuit court erred in the way it used its credibility finding in applying the legal standard, the supreme court then remanded to the circuit court for a further assessment of the victim's credibility and application of the legal standard, as we described above. The supreme court's goal was not to ignore the credibility assessment, but instead to rely on it.
¶10 Freeman argues that, in a case applying the prejudice test for ineffective assistance of counsel, the supreme court disregarded the circuit court's assessment of the credibility of a new witness. See State v. Jenkins, 2014 WI 59, 355 Wis.2d 180, 848 N.W.2d 786. This appears to be an accurate description of the court's analysis in the ineffective assistance context. The court expressly stated that, in assessing prejudice, "a circuit court may not substitute its judgment for that of the jury in assessing which testimony would be more or less credible." Id., ¶64. It may be difficult to readily square this...
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