State v. Jackson

• Decision Date: 20 January 2023
• Docket Number: 2020AP2119-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Larry L. JACKSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

405 Wis.2d 458

983 N.W.2d 608

2023 WI 3

STATE of Wisconsin, Plaintiff-Respondent,

v.Larry L. JACKSON, Defendant-Appellant-Petitioner.

No. 2020AP2119-CR

Supreme Court of Wisconsin.

Oral Argument: September 30, 2022

Opinion Filed: January 20, 2023

For the defendant-appellant-petitioner, there were briefs filed by Frederick A. Bechtold and Frederick A. Bechtold Attorney at Law, LLC, Minnesota. There was an oral argument by Frederick A. Bechtold.

For the plaintiff-respondent, there was a brief filed by Eric M. Muellenbach, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Eric M. Muellenbach, assistant attorney general.

An amicus curiae brief was filed by Melinda A. Swartz and the Law Office of Melinda Swartz, LLC, Milwaukee, on behalf of the Wisconsin Association of criminal Defense Lawyers.

DALLET, J., delivered the majority opinion for a unanimous Court.

REBECCA FRANK DALLET, J.

¶1 A defendant is entitled to a Machner ¹ hearing if his postconviction motion sufficiently alleges ineffective assistance of counsel and the record fails to conclusively demonstrate that he is not entitled to relief. See State v. Ruffin, 2022 WI 34, ¶37, 401 Wis. 2d 619, 974 N.W.2d 432. Although one of Larry Jackson's three postconviction claims met both of these requirements, the circuit court² denied his motion without a hearing and the court of appeals affirmed. We affirm in part, reverse in part, and remand to the circuit court with instructions to hold a Machner hearing regarding that claim.

I

¶2 In 2015, Richard King was shot and killed in front of a duplex on North 60th Street in Milwaukee. Jackson was subsequently charged with first-degree intentional homicide and possession of a firearm by a felon.

¶3 King and his wife, C.W., lived in the duplex along with their upstairs neighbors Gerald Tucker and his wife, Tiffany. The two couples did not get along, and on the day of the homicide, King was upset with Gerald over some broken glass he found near his car. King and his friend Andre Dorsey confronted Gerald and Tiffany with a gun. The tension was momentarily defused, however, when the Tuckers’ kids came outside. According to Gerald, after getting inside, Tiffany called their friend Jackson and asked him to come over. Later on, King confronted Gerald again after he stepped outside to smoke a cigarette. Dorsey, who was now standing off to the side, saw a man with a medium complexion who he later identified as Jackson walk up to Gerald. The two whispered to each other and then entered the front of the duplex. Moments later, Dorsey heard gunshots and saw King fall to the ground. He then saw a hand with a light complexion pointing a gun through a crack in the doorway fire two shots in his direction. After the shooting stopped, C.W. saw a young African American man with a dark complexion run past her ground floor window. She was never able to positively identify him.

¶4 Gerald was arrested as a suspect in the homicide. While he was in custody, he told police that he did not know who shot King. Months later, he identified Jackson as the shooter after learning that police had recovered the murder weapon. That weapon, a .40 caliber Smith and Wesson pistol, belonged to Jackson's friend, Joe Brown, and was matched by ballistics experts to a bullet and several casings found at the scene. At trial, Brown testified that he loaned the gun to Jackson on the day of the shooting. Jackson returned thirty to forty-five minutes later with rubber gloves and the gun, which had some bullets missing. The two men boiled the gloves to destroy any evidence. After changing his clothes, Jackson left. The two men met up the next day and Jackson allegedly confessed to being involved in a shooting, although he did not mention King or the Tuckers by name. Brown's friend, Anthony Boone, testified that he had once seen Jackson at Brown's house standing outside of the bathroom with what appeared to be a bag of clothes, but gave conflicting accounts as to when that occurred.

¶5 Jackson's defense at trial focused on his alleged alibi: that he was at his mother's house on the evening of the homicide. The only defense witness was Jackson's mother, Carol. She testified that she remembered the night well, and that she knew Jackson stayed at her house all night because her alarm system would have gone off if any of the doors to the house were opened.

¶6 The jury found Jackson guilty of both charges, and he filed a postconviction motion alleging ineffective assistance of counsel. In it, Jackson contended that his trial counsel was ineffective for failing to contact two potential alibi witnesses or call them at trial. Those two witnesses, Jackson's ex-girlfriend, JaNikka Marsh, and his sister, Crystal Jackson, submitted affidavits stating that they were with Jackson the evening of the homicide, that they were not contacted by trial counsel, and that they would have testified at trial if they were called to do so. We discuss Marsh's and Crystal's specific factual claims in further detail below. Jackson's postconviction motion also contended that trial counsel was ineffective in two additional respects: for failing to interview his mother or prepare her to speak to detectives or testify, and for incorrectly advising Jackson that the law required him to testify first.

¶7 The circuit court denied Jackson's postconviction motion without a hearing. Regarding trial counsel's failure to contact Marsh or Crystal, the court discounted their proffered testimony due to their preexisting relationship with Jackson and concluded that he had not sufficiently alleged deficient performance and that the record conclusively demonstrated that he was not prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (setting forth the two requirements for an ineffective assistance of counsel claim, deficient performance and prejudice). Additionally, the court held that Jackson's claim that counsel did not interview Carol or prepare her to speak to detectives or testify was conclusory, and that the record conclusively demonstrated Jackson was not entitled to relief on his claim that counsel incorrectly advised him that the law required him to testify first. The court of appeals affirmed. See generally State v. Jackson, 2020AP2119-CR, unpublished slip op., ¶¶23-29, 2021 WL 4736615 (Wis. Ct. App. Oct. 12, 2021).

II

¶8 When we review a decision denying a postconviction motion without a Machner hearing, we evaluate two issues de novo. See Ruffin, 401 Wis. 2d 619, ¶¶27-28, 974 N.W.2d 432. First, we assess whether the motion on its face alleges sufficient material and non-conclusory facts that, if true, would entitle the defendant to relief. See id., ¶27. Second, we determine whether the record conclusively demonstrates that the defendant is not entitled to relief. See id., ¶28. If the defendant's motion alleges sufficient and non-conclusory facts which would entitle the defendant to relief and the record does not conclusively establish otherwise, then the circuit court must hold a Machner hearing. See id., ¶¶37-38 ; see also State v. Sholar, 2018 WI 53, ¶50, 381 Wis. 2d 560, 912 N.W.2d 89 (citing State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433 ). Conversely, "[i]f the motion does not raise facts sufficient to entitle the defendant to relief, or if it presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing." Ruffin, 401 Wis. 2d 619, ¶28, 974 N.W.2d 432 (citing Allen, 274 Wis. 2d 568, ¶9, 682 N.W.2d 433 ).

III

¶9 Jackson's postconviction motion alleges that his trial counsel was ineffective for: (1) failing to investigate or call alibi witnesses; (2) not interviewing Carol or preparing her to speak to detectives or testify; and (3) incorrectly advising him that the law required him to testify first. Before analyzing whether Jackson is entitled to a Machner hearing on any of these claims, we review some general principles applicable to claims of ineffective assistance of counsel and Machner hearings.

A

¶10 A claim of ineffective assistance of counsel has two prongs: deficient performance and prejudice. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. "To demonstrate deficient performance, a defendant must show that counsel's representation fell below an objective standard of reasonableness considering all the circumstances." State v. Dalton, 2018 WI 85, ¶34, 383 Wis. 2d 147, 914 N.W.2d 120. In evaluating counsel's performance, we are highly deferential to counsel's strategic decisions, but counsel nevertheless "has a duty to reasonably investigate or to make a reasonable decision that renders particular investigations unnecessary." Id., ¶¶34-35 (citing State v. Carter, 2010 WI 40, ¶23, 324 Wis. 2d 640, 782 N.W.2d 695 ). As for the prejudice prong, a defendant must show "a reasonable probability that, but for counsel's error, the result of the proceeding would have been different." State v. Guerard, 2004 WI 85, ¶43, 273 Wis. 2d 250, 682 N.W.2d 12 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ). A "reasonable probability" in this context means "a probability sufficient to undermine confidence in the outcome." Id.

¶11 With these general principles in mind, to determine whether Jackson is entitled to a Machner hearing, we must decide two questions. First, does Jackson's motion allege sufficient material and non-conclusory facts that, if true, would entitle him to relief? See Ruffin, 401 Wis. 2d 619, ¶27, 974 N.W.2d 432. Because Jackson's motion alleges ineffective assistance of counsel, that means he must allege facts that, if true, would satisfy both the deficient performance and prejudice prongs of Strickland. See Sholar, 381 Wis. 2d 560, ¶50, 912 N.W.2d 89. If we answer that first question in Jackson's favor, we move on to the second and...