*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellant-Petitioner. L. Love, Lisimba
Supreme Court 27, argument April Oral No. 2003AP2255. July
Decided
For the the cause was attorney general, Sanders, C. with Michael assistant Peggy Lautenschlager, on the A. attor- whom brief ney general. BUTLER, J. Lisimba JR., 1. LOUIS B. Love seeks summary disposition1 appeals that
review of a court of denying post- court's affirmed circuit order Love's requesting on newly motion a new trial ineffective conviction postconviction discov- assistance counsel grounds. ered evidence argues presented that he ma- 2. Love sufficient reviewing meaningfully facts for a court to assess
terial he he is to an Further, his claims. contends that entitled evidentiary hearing agree. Although on both claims. We allege that, facts on motion does not Love's sufficient hearing, face, at the their would be admissible objective papers allege fac- motion sufficient material true, him There- that, if entitle to relief. tual assertions appeals' the court of decision fore, we reverse evidentiary an this to the circuit court for remand case hearing on to determine whether both of claims Love is entitled to a new trial.2
HH shortly September mid- 28, 1999, On after profes- night, Robinson, a Bucks Milwaukee Glenn Sports player, Bar left Junior's sional basketball (Wis. Love, v. 2003AP2255, unpublished order State No. 2004). May 12, App. Ct. trial is entitled a new do not determine Love We the defendant was ineffective or because either because counsel merely conclude newly discovered We presented has evidence. an has that would warrant Love raised sufficient facts evidentiary hearing each claim. *5 twenty away
Milwaukee, Wisconsin. Fifteen or feet by exit, from the he was accosted two men and robbed. following presented The evidence was at Love's trial. Sports 4. Robinson arrived alone at Junior's Bar p.m. p.m. stayed between 10:00 and 10:30 and there for an hour and a there, half. While he conversed with Corley, three women: Tawanda Knox, Yolanda Corley Latasha Robinson.3 called a hers, friend of Corley Wilson,4 Calvin who stated he knew Robinson. telephone briefly handed spoke Robinson, who with Wilson. shortly Corley 5. Knox left the bar before doorway
Latasha. As Knox left she saw a man in the "Poppa," by bar she believed to be a nickname which she knew Love. Knox lived across the street from Love and worked in a hair salon owned Love's sister-in- up, law. Knox Poppa?" testified that said, she "What's as she exited the bar. Knox could not remember if the person anything Upon said back to her. cross- per- examination, Knox testified that she was not 100 cent certain that it was Love she saw. leaving
¶ 6. After bar, Knox went to the ve- hicle she and her friends had arrived in and sat inside approximately for two minutes. She saw Robinson standing roughly parking near car, which was three spaces away. Corley and Latasha then entered the car in sitting. which Knox was put 7. Knox saw Robinson his hands in the air removing something
like he from around his neck. began away, As Latasha to drive the vehicle Knox 3 Latasha Robinson is not related to Glenn Robinson. For clarity, she will be referred to as "Latasha." 4 Calvin's last name of "Wilson" was taken police from a report contained in the record. facing backing up out with his hands noticed Robinson getting my god, Knox said, "Oh he's robbed." and she the face of the assailant front not, however, could see Knox The car then drove off without of Robinson. *6 robbery. immediately observing the rest of the Knox Sports phone cell to Bar from Latasha's called Junior's agreed robbery. report that at that time she Knox robbery. thought in the Love was involved being robbed, the send 8. While Robinson was inadvertently phone cell was button on Latasha's telephone pressed, telephone dialed the number and the Corley, in Knox, and Latasha's conversation of Wilson. robbery during immediately and after the the car tape The contained on Wilson's voicemail. recorded regarding conflicting from the women statements "Poppa" anyone if The and so where. State whether saw tape played at trial. this Williams, a left the bar with Mike 9. Robinson gave Corley's, shortly Knox. after Williams
friend of ap- Corley's Robinson number, after which Robinson proached parked approximately his vehicle that was noticed exit of the bar. Robinson to 20 feet from the directly parked his car. front of vehicle another on his vehicle the alarm was about disarm Robinson approached him from what Robinson man wheri a The man in front of his. was the vehicle assumed handgun approached to, and told Robinson a silver with yourself." mean this to Robinson understood "Break being handed over robbed. Robinson he was telephone, keys, to hand over his and tried and wallet from his neck. it his assailant snatched necklace but gun away and man with the from the backed Robinson man approached Another of his vehicle. the rear stepped Robin- vehicle and told of the around back gave not to run. After
son Robinson the men his earring, parked the two men ran to the car in front of Robinson's vehicle and left. Sports
¶ 10. Robinson then went into Junior's Bar police report robbery. where he called the When police gunman arrived, Robinson told them that the pounds two, mini-afro, was "around six awith complected." dark Robinson described the other assail- weight ant as "around six one around the same 170,180, complexion." and dark Robinson also estimated both years assailants were no more than 29 or 30 old.5 identify any did Robinson not scars or facial hair as being present on either attacker. Robinson later testi- length fied each man had been about an arm's away him from and that he focused on the robbers' faces staring gun. at the The whole incident took about two minutes. *7 days robbery,
¶ 11. Two after the Robinson was given photo arrays. identify several Robinson did not anyone arrays the as assailants. These did not include a picture person Moss, of Love or Effrim the later charged co-conspirator robbery. as a to the days robbery,
¶ 12. A few after the Robinson was by Wilson, contacted who told that he Robinson had the Knox, recorded conversation between Latasha, and 5 parties stipulated The also Lopez that if Officer Alex testify, were called to he would descriptions state that the of suspects given by the himto Glenn Robinson were as follows: Suspect inch, pounds, number 1. Black male. Six foot one 170 20
years age, skinny, wearing of dark skinned with a mini-afro clothing pistol. unknown and armed with a silver semi-automatic male, Suspect inches, pounds, number black 2 6 foot 20 years skinny, age, wearing dark skinned and unknown cloth- ing. regarding Corley phone cell voicemail the rob- on his audiotape bery. Robinson recorded the conversation on police. gave to the it robbery, ¶ after the Robinson was 13. One week photo arrays. set, In shown four the third Robinson percent that he 80-85 sure that Love's indicated picture was gunman. agreed that was that of the Robinson lighter complexion picture featured a man with the at than he remembered. Robinson later identified Love line-up, he and, trial, at Robinson said percent that his identification of Love as the sure gunman identified Love at was correct. Robinson also hearing preliminary and trial. long incident, At the time Love had a right hair, cheek, wide on his short and had a beard scar report, detention which and mustache. Love's arrest arresting officer, indicated that was filled out weighed pounds, complexion, Love has medium heavy years testified he was 26 had a build.6 Love also old. presented testi- 15. Love an alibi defense. Love night he not at the bar that and had never
fied that was gone Sports he had Junior's Bar. Love stated that picking up Adams' mother the been his friend Rochelle robbery. night of the accompa- often 16. Rochelle testified Love picked up her mother and remem-
nied her when she being September 27, 1999, with her on bered Love day spent particular with because she had whole Marilyn Adams, mother, Rochelle's testified him. *8 daughter occasionally accompanied while her Love 6 by weight usually Apparently, suspect's estimated arresting officer or suspect tells the either what officer's observations. up
picking work, did her from but not remember the night September particular. 27, 1999, in Mary
¶ 17. Jones also testified on behalf of Love. night robbery that on the of the Jones testified she spoke Sports Bar, with a man named "Dee"at Junior's seeing who, them, after Robinson at a table behind going that, he stated rob Robinson. Jones shortly testified that she left the bar after Robinson and being saw Robinson robbed. Jones testified she ob- appeared gun served Dee with what to be a Dee saw approach and another man Robinson from behind. At seeing this, ran, Jones testified she but saw Robinson take off a necklace. Jones said that "Dee" awas black complexion, approximately male with dark 26 to 27 years age, pounds inches, five foot seven awith build, medium and was clean-shaven.
¶ 18. Scott LaFleur of Detective the Milwaukee Department Police in testified rebuttal. He stated that many testimony Jones had contradictions her between police. and her statement to LaFleur stated that Jones police robbery Saturday night, told was on a not the Monday night it occurred. LaFleur noted also that she police upon told leaving she was so close behind Robinson caught
she the door before it shut after he passed through. videotape The surveillance of the door- way anyone leaving directly does not show behind Robinson. Jones also stated that the attackers came gun from behind and had a black while Robinson they testified that came from the front behind and gun. had a silver guilty robbery
¶ 19. Love was found of armed as party jury to a crime. The was unable to reach a verdict acquitted. Moss, and he was later The circuit court County, for Gordon, Milwaukee Honorable Bonnie L. years prison. sentenced Love to *9 postconviction ¶ 20. Love's counsel filed two mo- requesting sentencing tions, one modification, the other alleging ineffective assistance of counsel. The ineffec- tive assistance of counsel claims stemmed from Love's (1) object prosecutor's trial counsel's failure to to the preliminary during reference to the examination (2) closing arguments; trial and and invitation to the jurors lights to turn down the and time themselves for during two minutes their deliberations. See State v. (Wis. unpublished slip, op., Love, ¶ 2001AP817, No. 6 2001). App. County Ct. 11, Dec. The Milwaukee Circuit Court, Honorable Bonnie Gordon, L. denied these mo- appeals tions, Id., the court of affirmed. May pro 6, 2003, Love, 21. On se, filed a motion post-conviction §
for relief under Wis. Stat. 974.06 (2001-02)7 requesting grounds. a First, new trial on two requested newly Love a new trial based on discovered Christopher evidence. Love included an affidavit from Hawley, who claimed to have met inmate, another Floyd Bay Smith, Jr., Lindell while at Green Correc- Hawley tional averred that Institution. Smith admitted robbing in-depth to Robinson and shared details re- garding booking the incident.8 Love also submitted a photograph of Smith taken one week after the Robin- robbery. carrying son Smith had been arrested for a weapon, picture concealed his is that of male with complexion, years weighing pounds a dark old, with a mini-afro. argued postcon- Second, Love that also failing allege
viction counsel was ineffective for failing investigate his trial counsel was ineffective for 7 All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. in-depth The affidavit does not these describe details. provided support, exculpatory Love As witness.
an January prepared 2000, report police that was begin, days trial was to Love's three before which was telephone call received a mother noted that Love's County 22,1999. Jail on November the Milwaukee from Veasley and as Jerees *10 himself The caller identified actually knowledge robbed who to have claimed alleged trial counsel in motion that Robinson. Love investigate Veasley attempt nor to contact did not alleged identifi- Robinson's that since claim. Love also linking piece Love to the sole of evidence cation was the exculpatory investigate wit- this scene, failure to inculpated another, was ness, at least a witness or prejudicial. deficient County July
¶ 2003, the Milwaukee 2, 23. On Love's Franke, denied John Court Honorable Circuit newly regard discovered evi- Love's motion. With that the Haw- court concluded claim, the circuit dence ley an evi- that warranted not evidence affidavit was hearing. dentiary that the The circuit court determined "merely in- to another attributes comments affidavit Floyd Jr., which, if sworn to Smith, Lindell mate, one might qualify as detail, more Mr. Smith somewhat newly evidence."9 other discovered regard ineffective assistance ¶ to Love's 24. With that Love claim, the circuit court concluded counsel any did not inves- that counsel failed to offer evidence alleged telephone tigate mother received call his Veasley. deter- Further, the circuit court from Jerees any how inves- failed to demonstrate mined that Love tigation The circuit court his case. would have benefited analysis on Knox's court's centered The bulk of the circuit new that constituted recantation and whether subsequent however, us. is not before argument, This evidence. asked, "Who is Mr. Did Veasley? he know what he was about? he talking Does lead us to any admissible evidence to the helpful defense?" Because of these deficiencies, the circuit court denied Love's motion. Love, se, pro appealed. The court of appeals affirmed the circuit court's order. State v. summarily Love, (Wis. 2003AP2255, No. order unpublished Ct. 2004). App. May 12, Love, pro se, petitioned this court for review. After review was granted, Love was appointed II counsel. 26. Our standard of review was set forth in Allen,
State v. 106, 9, 568, 2004 WI 274 Wis. 2d N.W.2d as follows:
Whether a
postconviction
defendant's
motion al
leges sufficient
facts to entitle the defendant
to a
*11
hearing for
requested
the relief
is a mixed standard of
First,
review.
we determine whether the motion on its
alleges
that,
face
true,
sufficient material
if
facts
would
question
entitle the defendant to relief. This is a
of law
Bentley,
[State
that we review de novo.
v.]
201 Wis. 2d
(1996)].
[303,]
[682
309-10
N.W.2d
If
the motion
facts,
raises such
the circuit court must hold an eviden-
310;
State,
tiary hearing.
489,
Id. at
Nelson v.
54 Wis. 2d
(1972).
497,
However,
I II Allen, In court a postconviction this held that setting must contain an historical basis forth motion material facts allows the court mean- reviewing that Id., 18, assess defendant's claims. 21-22. ingfully ¶¶ allegations This court mere from conclusory contrasted id., 29, facts, assertions of those material which ¶¶ significant the court defined as fact or "[a] Id., to the or matter at hand." This essential issue that a motion will postconviction court be proposed if it within the four corners of the alleges sufficient 'h'; is, and who, itself "the five 'w's' one document Id., what, where, when, and how." 23. The why, follow- of postconviction ineffective assistance counsel mo- ing offered as a model for hypothetical presenting tion hearing: facts to an evidentiary sufficient warrant alleges deprived The defendant she was effective because her trial failed assistance counsel counsel Johnson, witness, testimony Bill call as whose would testimony support dining defendant's that she was going boyfriend to the movies with her at 10:00 1, 2002, Sally's night on the June Hair p.m. when burglarized. Salon was neighbor,
The told trial counsel that her defendant Johnson, p.m. Bill 7:00 entered restaurant around boyfriend dining, the defendant and her were *12 while seated, Mr. way stopped on the be Johnson at that to couple. The defen- defendant's table and talked with the 124 dant following told trial counsel that dinner she and her boyfriend Mr. saw Johnson at the movie theater while they buy waited in line p.m. tickets for a 9:15 movie. The defendant informed her trial counsel that three movies were scheduled to start p.m. between 9:00 p.m., 9:15 during the time which the defendant and her boyfriend lobby were the theater and saw Mr. Johnson. The alleges defendant further that gave she receipt trial counsel her from the restaurant.
This failure call Mr. Johnson as a witness was prejudicial deficient and to the defendant as there ais reasonable probability that she would not have been stealing convicted of products Sally's hair from Hair Salon had Mr. Johnson testified.
Id., ¶ 28. This court in Allen indicated this showing
warranted an evidentiary because it hearing "contains i.e., sufficient material the name of the witness facts — (who), the reason the witness is important (why, how), when)." and facts that can be proven (what, where, Id. 29. Love contends his postconviction motion satisfies Allen's that a proposal postconviction motion "the five allege 'h;' is, .who, 'w's' and one what, where, when, Id., why, and how." 23. He asserts that he has submitted material facts opposed as to conclu- sory allegations would allow the court to reviewing id., each of meaningfully assess his claims. See 21¶ 314). 201 (citing Bentley, Further, Wis. 2d at Love argues that he is entitled to an evidentiary hearing both his newly discovered evidence and ineffective assistance of counsel claims. agree.10 We postconviction We note that Love filed his pro motion se and while incarcerated. As this court stated in State Terry ex rel. (1973): Traeger, 490, 496, v. 60 Wis. 2d N.W.2d
A prevail assistance of an ineffective ¶ 30. "To that counsel's must show defendant claim, the counsel performance deficient constituted inaction or actions deficiency prejudice." him State v. caused that the and (Ct. App. 431, 445, 583 N.W.2d174 Brunette, 2d 220 Wis. 1998) Washington, (citing 668, 466 U.S. 687 v. Strickland (1984)). deficiency, prove the defendant constitutional To an conduct falls below that counsel's establish must objective Strickland, 466 of reasonableness. standard Thiel, 111, 19, 264 Wis. 687; v. 2003 WI U.S. at State preju prove constitutional 305. To 571, 2d 665 N.W.2d 'there is a reason must show that" dice, the defendant unprofessional probability that, but for counsel's able proceeding been would have errors, the result of the probability probability is a suffi A reasonable different. Thiel, in the outcome.'" confidence cient to undermine (quoting Strickland, at 466 U.S. 571, 2d 20 264 Wis. 694). inquiry not on the outcome The focus of the " reliability proceedings.'" Id. of the trial, but on 'the (quoting Pitsch, 642, 2d 369 N.W.2d v. Wis. State (1985)). postcon- Regarding ineffective assistance of following in his counsel, Love asserted viction postconviction motion:11 prisoner recognize of the that the confinement We prison, necessary regulations in addition to the of the reasonable indigent, many prisoners and most are are 'unlettered' fact that legal prisoner or to know to obtain assistance make it difficult for procedural requirements in jurisdictional submit- and observe Accordingly, grievances followa liberal ting we must to court. by sufficiency pro complaints judging se filed policy in indigent prisoners.
unlettered and ineffective that an appeals has concluded The court of FACTS REVIEW error(s) support alleged The facts in of the ... upon up which this Motion is based the follow facts herein as follows:
1.) Love, Dorothy On at the Home of Ms. as 1/7/2000 supplement Report indicated in the that was taken *14 (3) Hargrove Pg. during Det. the interview Mrs. 11/22/99, Love stated that on telephone she received a call, person from a who identified himself as "Jerees Veasley" who was incarcerated at the Milwaukee County Veasley Jail. called Jerees ms. Love and stated that, "they got wrong to Ms. Love Man on the case, I Glen Robinson" and know who did it. Ms. Love Attorney
stated that she did mention this to Mr. Love's (See. Veasley. and that she knows about Mr. Jerees (B)12 Report attached hereto as exhibit.
2.) Trial "Ann investigate counsel Bowe" failed to Veasley" actually facts that "Jerees knows who robbed Mr. Glen Robinson.
3.)
(Exhibit.
Trial
"Ann
counsel
Bowe" failed to submit
B) into evidence and failed to interview "Jerees Veas-
ley"
him
and call
as a Witness on the behalf of the
Defendant,
proved
which would have further
that the
postconviction
assistance of
counsel claim is not barred
State
(1994).
168,
Escalona-Naranjo,
v.
2d
report January dated that stated: 11/22/99, during Also the interview Mrs. LOVE stated that on she call, telephone person unknown time from a who received VEASLEY, identified himself as Jerees who was incarcerated at County that Jail. VEASLEY called and stated to Mrs. LOVE case, "They got wrong man on the ROBINSON I know who did [Love's] did this to it." Mrs. LOVE stated that she mention attorney they Mr. VEASLEY. know about not commit this crime. Trail counsel Defendant did (Exhibit-B.) attached as police report knew of the
ISSUE A.1 in violation Counsel was Ineffective Postconviction Defendant's Sixth and Fourteenth Amendment guaranteed by the Wis. Rights Constitutional as failing bring a Postcon- and U.S. Constitution for alleging the trial viction Motion before court "Ann rendered Inef- defendant's trial counsel Bowe" failing Investigate and Sub- fective Assistance for indicating that else other than mit evidence someone this crime. the defendant had committed
ARGUMENT Bar, that trial prove In the case at the Defendant will in the fol- counsel rendered "Ineffective Assistance" *15 lowing respects and that Postconviction Counsel was trial failing allege Ineffective for the error's of the counsel. in defendant's upon
As demonstrated the facts which based, police trial counsel was aware of the Motion is Veasley" attached to report and statement of "Jerees (Exhibit-B-), "Jerees this Motion as which states that Veasley" Robbed Mr. Glen Robinson and knows who person and has been that the Defendant was not wrongly accused. investigate by contacting
Trial counsel failed to calling him Veasley" purpose as "Jerees for would on the behalf of the Defendant which Witness exculpatory as evidence the Defendant's have served proved his innocence. favor and further FOR BUT COUNSEL'S THE UNPROFESSIONAL ERROR S BEEN DIFFERENT RESULTS WOULD HAVE solely The defendant was convicted based testimony. There was no addi- victim's Identification linking tional the Defendant to the crime such evidence camera, weapon's, fingerprints as and or or con- video fession, etc.
Furthermore, description the victim's initial of the extremely descrip- assailant was inconsistent with Whereas, tion of the defendant. the victim described being Complexioned", "Dark both assailants as Skin Pounds, Skinny,. 170 to 180
However, description is 6T and the defendant's actual Built, Eye's heavey Pounds and with a Brown Complex- and Black hair and a medimum Brown In defen- ion. See. Trans. 96-97: 23-25. addition the outstanding huge large scare on the very dant has a question any "Right" side of his face that without looking at the Defendant could not miss such an person face. outstanding physical impression upon his addition, ["]Jerees police reports In indicate that... crime also had Veasley" either witnessed the and/or knowledge culprits and had trial counsel of the real exculpa- thoroughly investigated presented such tory there is a reasonable likelihood that evidence different. Therefore results of the trial would have been Prejudice as a result of trial the Defendant has suffered investigate prepare adequate an counsel's failure to fail- counsel was ineffective for defense. Postconviction committed defendant's ing allege these error's *16 (Emphasis original.) in trial counsel.
129 1 ¶ motion material 32. We conclude the contains meaningfully facts to assess the merits of Love's inef- fective assistance of counsel claim. prong,
¶
First,
the
33.
as to the "who"
motion
key
indicates the name of the
witness that was not
Veasley.
investigated was Jerees
"why"
prongs,
Second,
as to the
and "how"
impor-
motion
the
the
indicates
reason
witness is
Veasley's exculpatory
tant
because
statements
were
defense,
critical to Love's
as the crux of the State's case
reliability
identification,
was
of Robinson's
an iden-
tification Love contends was mistaken. Love mentions
discrepancies
physical
between his
characteristics
description
gave
shortly
police
and the
Robinson
after the incident. Love
that
trial
also claims
his
counsel
Veasley's
investigate
information,
knew of
did
but
not
his
he
assertions that
knows who committed the
argues,
Thus,
crime.13
Love
trial
counsel was defi-
prejudiced,
Veasley's
cient and that he as
state-
ments undermine the confidence in the outcome.
Third,
"what," "where,"
as to the
and "when"
prongs, the motion
that the
that can
indicates
facts
be
proven
January
Veasley
7, 2000,
are that on
called
police
mother and
Love's
said
arrested the
wrong person
Veasley
is,
the Robinson murder. That
exculpatory
by saying
offered
evidence
Love is not the
dispute
ABA
pursuant
The State does not
to the
Justice,
obligated
Standards
for Criminal
trial counsel is
investigate
police reports.
information in
ABA
See
Standards
(3d
Justice,
Function, §
for Criminal
The Defense
L-4.1
ed.
Thiel,
1993);
37,
State v.
2d
see also
WI
Wis.
571,
perpetrator. informa- the source of acquisition explicit, not it the manner of its is tion or knowledge personal implied he either had material informa- or otherwise learned real assailant tion. upon point, argu-
¶ last 36. The State seizes this Veasley ing that Love does not establish how because knows, he the motion is deficient. claims to know what only "objec- provide However, a movant need sufficient Bentley, 313; 2d at assertions." See 201 Wis. tive factual ¶ Allen, is, 30. That a movant need 274 Wis. 2d cf. admissibility every for demonstrate theories of not or to introduce.14 factual assertion he she seeks Veasley Love has It is clear that asserts Veasley's knowledge exculpate that can Love. Whether ultimately however, not a admissible, information is papers. face of the motion matter to be decided from the Accepting true, must,15 the the statements as which we objective question mate- are sufficient is whether there entitle Love to relief. rial factual assertions that would are no contends that there 38. The State also support trial counsel contention that his facts to Love's investigate Veasley's On the con- assertions. did not trary, to investi- that trial counsel failed Love asserts Veasley actually gate knew who robbed facts that interview Love, not failed to and that it was Robinson Veasley Veasley, on Love's call as a witness and failed to was "inef- that trial counsel behalf. He further asserts investigate properly for failure fective" for failure to 14 is, course, advantage to do so. to the movant's It imagination supposition or proper not to entertain It is They must be allegations. gauge veracity of the factual J., Prosser, dissenting, Compare accepted as true. exculpatory
to introduce known evidence. These factual allegations legal adequate if assertions, true, are reviewing meaningfully allow court to assess his claim of ineffective assistance of counsel. *18 postconvic-
¶ 39. We further conclude that Love's tion motion sets forth sufficient material factual asser- hearing tions that entitle him to a on his ineffective assistance of counsel claim. performance,
¶ 40. As to deficient the State does dispute pursuant not ABA to the Standards for obligated Justice, Criminal trial counsel is to investi- gate police reports. information in See ABA Standards (3d § Justice, for Criminal Function, The Defense 4-4.1 1993); Thiel, ed. see also 264 Wis. 2d prejudice, although champi- 41. As to the State strength against assuming ons the Love, of its case papers facts Love's motion true, be our confidence only person in the outcome would be undermined. The perpetrator who identified Love as the victim, was the surrounding Robinson, but there are concerns his iden- physical tification based on numerous irreconcilabili- initially ties. above, As noted Robinson testified that he police gunman told the that the two, was "around six pounds complected," 170 mini-afro, with a dark pounds whereas Love was estimated at 245 with a heavy complexion. build and a medium Moreover, there testimony are also between inconsistencies concern- ing police police what he told the and his actual state- person ment, which indicated that the he identified as pounds, years age, inch, Love was six foot one skinny, In addition with a mini-afro. and dark skinned discrepancies, weight, age,16 color and skin to the face. the scar on Love's failed to notice Robinson Veasley may information as have admissible perpetrator cannot was, however, we real to whom the Veasley's testimony measure would how determine credibility against The identifications. of Robinson's credibility general are re determinations rule is that testimony. Honeycrest Farms, Inc. v. See live solved Corp., 596, 604, 486 N.W.2d 169 Wis. 2d A.O. Smith 1992). (Ct. testimony Assuming Veasley's App. true, testimony confi undermine our would however, that motion on Thus, because Love's in the outcome. dence alleges that, true, if facts material its face sufficient entitled to relief, Love is entitle the defendant would hearing.17 B *19 newly prevail for discovered ¶ on a claim 43. To by prove clear and must first a defendant evidence, "(1) convincing was discov the evidence evidence that (2) negli not defendant was conviction; after ered (3) seeking gent is material evidence; the evidence in (4) merely is not the evidence case; in the an issue Armstrong, ¶ 161, 119, 2005 WI v. State cumulative." 16 age. years of Love was 26 17 the nature the cost associated with fail to see how We opportunity right and any bearing on Love's hearing have of the Prosser, J., to the courts. Contra as his access
to be heard as well dissenting, 86.
133
639,
283 Wis. 2d
We conclude that appeals the court of in Bembeneck prop- erly analyzed postconviction Wisconsin's statute. It would be illogical to close the court's doors to a defendant newly who has evidence, discovered evidence that definition creates a rea- probability sonable that a different verdict would be reached at process a new trial. Due guarantee and its of fundamental fairness ensure that a defendant at least have access to courts and an opportunity to be newly heard where discovered evidence creates a probability reasonable that a different result trial, would be long reached at a newly new as as the discovered evidence meets minimum criteria set forth above. *20 REVIEW
FACTS love received Defendant January 30th On as Christo- an Inmate known Affidavit from Sworn together at North Hawley incarcerated while pher Hawley Facility. Christopher Fork Correctional he was incarcer- in his affidavit that under Oath states Facility with another Bay Correctional at Green ated Floyd Lindell Smith Jr. name of: by the Inmate known party this as conversed with he heard as well and that he in fact this crime and that about occasion's of several he that it was general population "Brag" to the use to Robbery against Mr. this committed done and whom (Exhibit-I).19 See. Glen Robinson. prior had knowl- not aware or Defendant was The Christopher in ... are stated the facts which edge of Hawley's Affidavit[] and StatementG. affidavit, states Hawley's "Exhibit-I" which Attached as part:
in relevant shortly 1.) my brought to attention was That Mr. Love's situation July Facility on: Fork Correctional I arrived here North after 25th 2.) POD-Living Mr. Love Unit as placed the same That I was happen hear or Overhear that I A-North and is and was which Inmate Para discussing the Inst. case with one of Mr. Love Facility. Legáis at this Bay 3.) originally here to NFCF from Green transferred That I was upon my arrival there there and and while Inst Correctional Hall. in the South Cell being placed and Housed 4.) spoke upon reflecting upon what after That further Bay Correc- matter from Green knowing about the some details formally myself Facility. Mr. Love and I introduced tional case personally to his direct told relative explained I had been what another Bay Inst around Correctional at Green while overall present at the time. where other's of whom Inmate and several *21 upon questioning Allen,
The Defendant told Det. nothing that he had Robbery to do with the which happened to the victim Mr. Glen Robinson on 9/28/99.
ARGUMENT FOR REVIEW 1.) EVIDENCE DISCOVERED AFTER TRIAL January On 30th 2003 the defendant received Sworn Affidavit from an Inmate Christopher known as Hawley, who states Under Oath that he was incarcer- Bay ated at Green Correctional Institution with an- by other Floyd Inmate the name of Lindell Smith Jr. and that on several occasion's that he and Mr. Smith discussed matters of what and how Mr. Smith has committed this crime and that Mr. very Smith was braggative of what and how he had done this crime in point effect at that and time concerning and all of this this issue of Mr. being Glen Robinson Robbed at that (1). appointed time. See. Exhibit. The dates on the clearly above mentioned Affidavits demonstrates that this evidence was discovered after the trial. 5.) Further, Party that a or Inmate the name of Mr. FLOYD myself
LINDELL SMITH JR. of whom was like at the time Bay Facility incarcerated at Green Correctional and located within away the South Cell Hall and we were a few Cells from each other. 6.) discussing legal Further on several occasion's while elements of my my case, myself own Conviction and Criminal and Mr. Smith engaged upon and embarked several conversations relative to the past my criminal elements of his and as well as own and the matter of Mr. many Glen Robinson came into discussion times. 7.) Further, Mr. Smith Jr. on several other occasion's disclosed to indepth concerning me details what and how he had done and just committed this Offense and that it was too Bad that weight upon of the matter had fell Mr. Love in such a manner. 2.) IN NEGLIGENT WAS NOT DEFENDANT MAK- AND NOW EVIDENCE SUCH SEEKING AWARE ING COURT totally unaware of
Furthermore, Defendant was Jr. admitted Floyd Lindell Smith that Mr. fact Hawley. Christopher Inmate committing this crime to Hawley voluntarily Christopher not. . . Inmate Had evidence, Defendant would such came forward with Newly Discovered Evidence of this possession not be *22 him at the time not known to facts were because these of this offense. to his conviction prior 3.) ISSUE TO THIS IS MATERIAL EVIDENCE that someone very strong possibility is a [T]here . . . actually done and or commit- than the Defendant other the offense.... ted Hawley material Christopher is Affidavit of
The Sworn the facts it further corroborates because to this issue done or com- the defendant than that someone other in material issue further the mitted this offense the identification. this case is
4.) EVIDENCE IS DISCOVERED THE NEWLY TO EVIDENCE CUMULATIVE MERELY NOT AT TRIAL. PRESENTED the... based on Evidence is Newly Discovered
The Mr. Hawley who Witnessed Christopher of Mr. Affidavit confessing him and other's Jr. Floyd Lindell Smith offense committed this of whom party that he was of the victim whom Mr. Glen Robinson to the as relative at Bar and that in this case point Robbed at Gun make these did in fact Smith Jr. Floyd Lindell Mr. other's as presence in the outstanding statements they were directly and while Hawley Mr. as to well Institution. Bay Correctional at Green jointly confined This evidence was not known to the defendant at the time of his trial because such evidence was not known prior to the defendant to his conviction therefore this merely evidence is not cumulative evidence that was presented at trial.
6.) REASONABLE PROBABILITY EXIST OF DIF- FERENT RESULTS IN A TRIAL NEW The light Defendant asserts in Newly of the Discovered there probability Evidence is a reasonable may that a produced different result be if the Defen- dant is Granted a New trial. demonstrates,
As the only record linking evidence the Defendant alledged supposedly to the crime is that Jury upon finding relied guilty the Defendant is testimony the victim's identification of the defendant testimony and the of Towanda Knoxs which consisted placing the defendant at the scene of the crime. Newly These Discovered facts combined with the fact the victim's initial description of the assailants "Dark Complexion" describing being both as very 170-180 Pounds different from the defen- description dant actaul wheres the defendant's actual skin tone is and would be "Medimum Com- *23 plexion" and at 245 Pounds. During photo Array the the victim wasn't a 100% sure the Defendant was party the of whom committed this crime.
During the crime, entire of the commission the victim staring straight ststes that he was at the Barrel of the Pg. (35), Gun. See puts Trans. which question into the degree of attention the victim was able to focus on the assailants staring face. While at the Barrel of the Gun the victim stated that he saw his life flash in front of his (32) Eye's. Pg. See. Trans. and further stated that it (32). very was a experience. Pg. traumatic See. Trans. describing the case the victim Defendant In this at Bar Pounds, alth- being Complexion" 170-180 as "Dark complexion is Medimum and rough Defendant this identification unreli- 245 Pounds renders point ... able blank. Array the a sure
During the Photo victim wasn't 100% had party of or held that the Defendant was whom (8). Pg. Trans. ... a Gun him. See. Outstanding loud
The defendant Mr. Love has an side of face that would be Right on the Scar anyone plainly not notice or see impossible for or viewing looking directly at him and even as if or looking Robinson indicate's that he was down Mr. Mr. Robinson never of the and State nor
barrel Gun such any point they noted an out- mentioned at face. standing upon mark defendant's points The Defendant out these identification factors that the identification is the Court which demonstrates erroneous, substantially flawed, unre- and purely taking doubt and and in itself casts reasonable liable Newly Discovered Evi- into consideration defendant's dence, that the probability a exist results reasonable duly if fact may have different the defendant been a trial. Granted New booking photograph submitted a 46. Love also after one week Robinson just
of Smith taken is a male The shows that Smith photo robbed.20 de- a The physical with mini-afro. complexion darker pounds, at 165 weight also lists Smith's scription skinny.21 to be appears Smith con carrying from apparently arrest stemmed Smith's weapon.
cealed stocky person depicts also booking photograph Love's
appearance.
¶ 47. We conclude that Love's motion contains reviewing sufficient material facts that allow a court to meaningfully newly assess his discovered evidence prong, claim. First, as to the "who" the motion indicates newly the name of the discovered witness is "Christo- pher Hawley." Secondly, "why" prongs, as to the and "how" Hawley impor- motion indicates that the reason person, Floyd
tant is because another Jr., Lindel! Smith Hawley told that he committed the crime. As Love went great length only person into at in motion, one saw perpetrator robbery: of the Robinson. However, depiction perpetrator Robinson's of the does not neces- sarily align physical description, may with Love's accurately up more line with Smith's. above, As noted initially police Robinson testified that he told the gunman pounds two, "around six and with complected." gave a mini-afro, dark Robinson a differ- description gunman police. ent of the to the We have already age, weight, referred to the and skin color discrepancies police between Robinson's statement and physical appearance. Love's Love avers in his motion entirely reliability a case that turned on eyewitness Robinson's identification of Love, a different may result have occurred at a trial had the evidence Hawley about Smith and his statements to been admit- ted at trial. Third, "what," as to the "where," and "when"
prongs, the motion indicates that the facts that can be proven Hawley are that while was incarcerated in the Bay Facility, bragged Green Correctional Smith *25 Hawley how he commit- to about numerous occasions including in-depth giving crime, details about ted the commission. its argues Hawley
¶ The that the affidavit 50. State newly for make a valid claim discov is insufficient to Love not the ered evidence because admissibility Hawley's has established Specifically, of statements.22 Hawley's statements claims Love cannot establish State exception against to the the statement interest fit 980.045(4); § hearsay rule. Stat. State v. Guer See Wis. ard, 24, 250, 273 2d 895, 2004 WI Wis. 682 N.W.2d However, not above, we noted a movant need 12.23 as admissibility in the facts demonstrate the asserted postconviction motion, must but rather show suffi objective true, that, factual if cient material assertions to movant relief. would warrant the postconviction ¶ 51. We conclude that Love's also facts that entitle material motion sets forth sufficient newly hearing on his discovered evidence him to Love State claims that cannot show Specifically, the Hawley against penal to are statements Smith's statements Guerard, 85, 908.045(4); § v. 2004 WI Wis. Stat. State interests. 250, 2d 682 N.W.2d 273 Wis.
23 Guerard, 24, that a 2d this court held In 273 Wis. 908.045(4), § if: is under Wis. Stat. admissible statement 1) expose the made tended to declarant the statement when 2) liability; corroborated evidence the statement criminal conclude, light person in a reasonable that is sufficient to enable circumstances, the statement could he all the facts and true. unavailability. course, must also establish proponent Id. Of dispute claim. The State does not that the evidence conviction; after discovered that the defendant was not negligent seeking in evidence; the evidence is material to an merely case; issue that the evidence is not McCallum,
cumulative. See
2d at
Wis.
argues
¶ 52. The State
that the evidence does not
probability
create a reasonable
that a different result
would be reached at trial. See id. The State maintains
probability requires
that a reasonable
an outcome de
showing.
Avery,
terminative
State v.
See
213 Wis. 2d
(Ct.
1997).
App.
228, 240-41, 570 N.W.2d573
disagrees, claiming
*26
Love
a
53.
that
reasonable
probability occurs where confidence in the outcome is
(Abra
McCallum,
undermined. See
¶ here, 54. We do not decide this debate as Love's postconviction higher motion meets the outcome deter- postconviction minative test. Love's motion indicates Hawley testify that would that Love not the assail- (or Hawley testify get ant. will that Smith if Love can testify, testimony Smith to then it would be Smith's he) testimony committed this crime. Whether that is ultimately purposes admissible is not relevant for our testimony here. Whether that is credible is not relevant purposes accepted for our here. It must be as true. against If it true, is then the evidence Love against amounts to Robinson's identification another's assertion that Smith Thus, committed the crime. view- ing particularly light evidence, the new of the iden- discrepancies, probabil- tification there is a reasonable ity jury, looking both, at a would have reasonable guilt. to doubt as Love's Therefore, Love's motion evidentiary hearing. entitles him to an
IV presented In has sum, we conclude Love reviewing for a court to mean- material facts sufficient postconvic- ingfully of assess his ineffective assistance newly evidence claims. tion counsel and discovered to Further, we conclude that Love is entitled an eviden- hearing Although tiary claims. motion on both Love's allege that, face, not facts on their would does sufficient hearing, papers allege admissible at the the motion be objective that, if sufficient material factual assertions true, Therefore, entitle him to relief. we reverse the appeals' to the of decision remand this case court evidentiary hearing. court an circuit for appeals By of the court of the Court.—The decision cause remanded to the circuit court is reversed and the proceedings opinion. this further consistent with for (dissenting). PROSSER, T. J. Pre- 57. DAVID person venting of an one of the conviction innocent system. justice criminal The the central tenets of our Consti- States Constitution and the Wisconsin United including rights, right provide panoply to tution right right silent, counsel, to trial remain impartial jury, presumption innocence, and the an *27 in and minimize error fairness to defendants assure adjudication guilt. of appeal rights
¶ trial and 58. After a defendant's system be- exhausted, however, our must have been significant finality,1 and to the costs attentive to come challenges never-ending money to the in time 1 Allen, 568, 106, 11, 274 Wis. 682 2004 WI 2d See State v. Lane, 288, (1989); (citing Teague 433 v. 489 U.S. 309 N.W.2d 756). Lo, 75, 1, 107, 2d 665 264 Wis. N.W.2d State v. 2003 WI defendant's conviction.2 Public resources are limited. squandered rehashing When resources are in the injury nonmeritorious claims, the risk of error and accordingly.3 future defendants increases implicates requirements ¶ 59. This case that a satisfy forcing defendant must after conviction before a post-appeal evidentiary hearing. court to conduct a I majority opinion significantly dissent because the re- requirements necessary engage system duces the in this manner.
FACTUAL BACKGROUND September ¶ 60. On 28,1999, at least two robbers ambushed former Milwaukee Bucks basketball star Sports Glenn Robinson outside Junior's Bar on North Bay blocking Green in Avenue Milwaukee. After Robinson's vehicle with their car, the men confronted gunpoint they Robinson and held him at until had including stolen an $40,000 estimated in valuables, earring, Rolex watch and bracelet, necklace, diamond keys, phone, cash, cell and wallet. Robinson testified deeply by that he was shaken the incident because he going gunned was afraid that he was to be down parking tavern lot. days robbery, police 61. Two after the showed photo arrays. identify
Robinson several
He did not
anyone.
robbery,
One week after the
however, as he looking through
photo arrays,
a number of additional
2 See
Escalona-Naranjo,
State v.
185 Wis. 2d
(1994).
N.W.2d 157
Velez,
(1999)
See
1, 12,
State v.
224 Wis. 2d
Robinson lineup subsequently picked and Love out of a Robinson again preliminary and him at a examination identified at trial. person to be the same Love turned out spoke to, and saw, she
whom Tawanda Knox said Junior's, moments before an answer from at received personally robbery. Knox because she knew Love at a him, and worked lived across the street from she get hair cut. Love's hair Love his salon where went proved Love to be a owned the also sister-in-law salon. parole of the on at the time offender who was habitual negligent by motor of a for homicide use incident vehicle. address in lived 37th Street Love at North family Dorothy, mother, and other with his
Milwaukee by used Love's broth- The same address was members. Jeffrey, had exten- Litwain, Khalif, all whom ers hearing, sentencing records. At Love's sive criminal Magowan Attorney Terry commented District Assistant family, observing his brothers two of on Love's Magowan prison. said: were then [at little the time of was a bit of an outburst [T]here family... member of his jury verdict] one Love Love, myself I have younger brother... Khalif shooting cases.... for prosecuted Mr. Khalif Love twice that kind family [I]t's a functions fear intimidation. him, Love, against the cases
[G]etting back Khalif in the who have office prosecutors and I know two other because against him, they get all dismissed cases had ... I remember one witness up. don't show witnesses *29 cop was a and me cop son of a the called and said I'm not testify letting my against son the Loves. (Emphasis added.) Addressing sentencing,
¶ 64. Love's character at Magowan emphasized the vehicular homicide. In No- through stop sign a vember 1993 Love drove on North very high speed, striking 37th Street at a car rate of a killing passenger and a in the woman car. He and his fled the Love later scene. claimed that he did know not injured anyone, that he a had hit car or but Love's passenger police that he been told had instructed lie to injuries. Magowan about the nature his that asserted Love had no shown remorse for role in the his homicide.
¶ 65. These facts from the record tell little us a demanding evidentiary more about the man who is an hearing largely unsupported on his claims. It be must longer enjoys presump- remembered that Love no the tion of innocence.
ANALYSIS HH ¶ 66. There evidence in record people past, defendant has asked to lie for him in the family and that he and his function "on fear and surprise intimidation." It should no thus be motion to the court contains witness The recantations. majority opinion implies may that a circuit court not evaluating strength consider such factors of a post-conviction evidentiary defendant's motion for an hearing. disagree. I State, In Nelson v. Wis. 2d (1972),
N.W.2d 629 evidentiary down a an court set test for hearing guilty plea to a withdraw after sentencing. federal judgment discussed The court that, where to the effect the law and summarized cases sentencing judgment made after a motion is injustice, the discretion "it is within a manifest correct hearing grant not to or court whether of the trial quoting from United After Id. at 496. the motion." (N.D. 1969), Supp. Tex. 581, 583 Tivis, F. States v. id., the court said: guilty that if a motion to withdraw determine
We here which, if alleges facts and sentence judgment plea after relief, the court true, the defendant would entitle However, if the evidentiary hearing. must hold an *30 in his motion to allege facts fails to sufficient defendant conclusionary fact, only presents or question of raise a conclusively demonstrates if the record allegations, or relief, the trial not entitled to defendant is that the deny the legal of its discretion may in the exercise court the trial upon It incumbent is hearing. a motion without a review judgment independent its court to of after form pleadings. the record added). (emphasis Id. at 497-98 Bentley, 2d 201 Wis. ¶ v. In State 68. (1996), review a to was asked the court
N.W.2d pleas guilty request based to withdraw defendant's alleged counsel. of his trial assistance ineffective the on part of the and restated to Nelson The court turned motion on above-quoted "If the declared: The court test. alleges the defendant entitle facts which would face its must has no discretion circuit court relief, the to hearing." evidentiary 2d at 310. 201 Wis. an hold allege facts, sufficient motion fails "However, if the deny postcon- a discretion has the circuit court the any hearing of the a based without motion viction Id. at 310-11. in Nelson." factors enumerated three retrospect, Bentley In 69. has case created problems for First, several reasons. both the court of appeals4 important part and this court severed an of the namely, upon test, Nelson "It is incumbent the trial independent judgment court to form an after a review pleadings. Nelson, of the record and ..." See 54 Wis. 2d at 498. Second, because the court eliminated the "independent judgment,"
circuit
say,
it
court's
was able to
"[wjhether
alleges
which,
true,
motion
if
facts
question
would entitle defendant to relief is a
of law
Bentley,
review de
we
novo."
sufficiency
Bentley's
assertions that his counsel's
*31
performance
rejected
deficient,
but it
his claim guilty pleas only
"he entered his
he
because
was in-
incorrectly by
attorney
parole eligi-
formed"
his
about
bility.
Bentley
complained
The court
"never ex-
plains
why
how or
the difference
a
between minimum
parole eligibility
years,
11
date of
months and
5
13
v. Bentley,
See State
580,
587,
195 Wis. 2d
¶ 72. On this third
decision is
Upon
instinctively
reflection, however,
understandable.
say
why
not obvious
the court is able to
that
only
it is
Bentley's
guilty
plea
claim that he entered his
by
attorney,
he
is not an
because was misinformed
allegation
which,
true,
if
entitle him to
of fact
would
Bentley
explain
addition,
In
not
how a
relief.
does
judge
circuit
when "sufficient facts" have been
knows
pled
and must hold
so that the court "has no discretion
evidentiary hearing."
Bentley,
an
See
274 Wis. clarifying in a motion for a at the defendant's burden allega hearing, saying: "Bentley-type post-conviction depend To on facts outside the record. tions will often the record in an examine facts outside ask court to particularized evidentiary hearing requires a motion supporting under facts to warrant the with sufficient taking." Id., Then added: we *32 cases, Bangert5-type In the defendant has the initial showing hearing; burden of the basis for a but if he succeeds, the burden shifts to the state to show clear convincing plea and evidence that the defendant's knowingly, voluntarily, intelligently and entered. cases, Bentley-type
In the defendant has the bur- making prima den of facie evidentiary case for an hearing, succeeds, if and he he still has the burden of proving alleged error, all the elements the such as performance prejudice. deficient The defendant prove linkage plea must between his and the purported proof defect. The defendant's add up must to injustice. manifest
Consequently, requisite specificity required for establishing prima facie case mirrors the defendant's proof. ultimate burden of (internal omitted).
Id., 62-64 citation ¶¶ In a case, the defendant Bentley-type retains Therefore, burden of the defendant proof. should be to an required justify evidentiary hearing by alleging what he He cannot stand on expects prove. conclu- sory allegations, them hoping supplement at hearing, because the is not hearing intended as a fishing The defendant expedition. should a rea- plead sonably full statement of the facts so that dispute both can parties prepare litigate the real issues efficiently and the evidentiary hearing will serve as more than a device.6 discovery 76. This us to the brings present proceeding. Love's first claim is that he was denied the effective (1986). Bangert, State v. 131 Wis. 2d 389 N.W.2d 6Velez, 224 Wis. 2d at 12. of counsel at trial and the effective assistance assistance *33 Ann alleges Bowe, of counsel on Love that T. appeal. attorney, "Incompetent/Ineffective trial was as Counsel" in because she "failed to the facts that part investigate who Mr. Veasley' actually 'Jerees knows robbed Glen counsel, Robinson." Love that his alleges appellate Rosen, Mark ineffective for to that failing point was out Love's trial was ineffective with attorney respect Veasley. investigating in Veasley grounded 77. The matter a police 7, 2000, dated several before Love's January days
report trial. The was Detective Charles report prepared by in who wrote Hargrove part: 1/7/2000, I, Friday, approximately at
On 10:53AM conducting follow-up Det. HARGROVE was on follow-up interviewing case. This consisted of above LOVE, B/M, 3/16/73, [Lisimba] alibi witnesses for DOB: of 2818 N. 37th St. I, date and time Det. HAR-
At above stated GROVE, fact, respond Upon did in to 2818 N. 37th St. location, my [Lisimba] I met arrival at with mother, Dorothy one LOVE . .. who resides at LOVE'S that location ... during the interview Mrs. LOVE stated that
Also 11/22/99, call, telephone she received a unknown on as Jerees person time from a who identified himself County VEASLEY, incarcerated at the Jail. who was "They Mrs. VEASLEY called and stated to LOVE case, I know got wrong man on the ROBINSON stated that she did mention this who did it." Mrs. LOVE attorney they Mr. [Lisimba's] and that know about VEASLEY. police report This was before trial. available acknowledged police reports.
Love that he had read the Consequently, he have Jerees must known about Veas- ley Veasley testify trial and realized that did not before appealed. trial. conviction He filed at Love's also challenging post-conviction motion the effectiveness of his trial counsel. Against background, in- this Love's second against Ann
effective assistance of counsel claim Bowe Escalona-Naranjo, is barred State v. 185 Wis. 2d (1994), any 517 N.W.2d157 which holds that claim that appeal previous could have been raised direct or § post-conviction Stat. 974.06 Wis. motion is barred § being subsequent post- from raised in a 974.06 *34 motion, conviction absent a reason. "suffi- No sufficient why cient reason" has ever been shown this claim was my clearly earlier, view, not raised and in it is barred. Setting ¶ Escalona, 80. aside additional facts why show Love's ineffective claim assistance should not accepted why at face in be resort to facts the value— record demonstrates that the motion is insufficient. Veasley 22, 1999, 81. On November Jerees was allegedly County incarcerated at the Milwaukee Jail. Lisimba Love was also incarcerated at that time await- ing Veasley may trial. Love and have been incarcerated facility, may paths, may in the same have crossed or previously. have known each other We are left to speculate relationship about the because Love does not explain Logi- whether the two men know each other. cally, why there must have been some reason Jerees Veasley called Love's at mother her home instead of person authority. in some attorney, Bowe, 82. Love's trial Ann no
stranger represented to Love. him in She had Early in on, vehicular homicide case Bowe de- pursue cided to an case, alibi defense the Robinson attorney strategy, she notified district of that naming including alibi witnesses Love's mother. At Mary produced trial, Jones, Bowe witness attrib- who robbery uted the to someone named "Dee." quoted police report The that Dor- indicates othy attorney Veasley Love advised Love's about Jerees they Veasley." and was told "that know about Mr. Considering ¶ 84. defense, the defendant's alibi Attorney it imagine is hard to Bowe not would have claiming perpetrator. contacted a man know the real imagine post-conviction It is even harder that Love's attorney, unsuccessfully Rosen, Mark who accused Bowe of ineffective assistance of counsel on other grounds, ground would not have added that Bowe Veasley thought never if interviewed Jerees Rosen for a Veasley. minute that Bowe never interviewed lengthy post-conviction ¶ 85. Love's motion for supplemented relief is with but there affidavits, several Veasley saying is no affidavit from Jerees was not he by Ann Bowe, interviewed and no from Ann affidavit acknowledging Bowe that she never Jerees interviewed Veasley. although Indeed, Love testified at trial that he police reports, had read all there is no affidavit from stating Veasley him Bowe, that he asked discussed with pursuing inquired her lead, whether she was or why Veasley testify provides did not at trial. Love nothing conclusory except a assertion that Bowe did not *35 investigate potential this witness. Ann assertion that Bowe failed to Love's Veasley improbable
seek out and interview Jerees is so required ought that to to do make a Love be more than attorney all, bald assertion that his was derelict. After motion, at the time made the Love in he was Oklahoma brought and would had to have be back to Wisconsin. be escorted to now, he is he will still have to Wherever partici- county expense at to Milwaukee courtroom attorney, hearing. pate have have an in the He will to expense. in Ann Bowe will to be court. have at state Veasley probably in court. An have to be Jerees will attorney prepare for will to the district have assistant hearing spend in court and time court. And the itself hearing and conduct the have to schedule will personnel. necessary Love will all court have convene producing going evidence, forward, the burden of hearing, persuading the at a and he should be court prove expects required tell court what he to to given hearing. he is that before This on more detail court should insist evidentiary hearing response it affords an to before unsupported did Ann Bowe not Love's assertion that story. investigate Veasley's It not have would been for to obtain and submit more informa- difficult Love asking letter, He could a "Dear Ann" tion. have written attorney to confirm she never inter- his former Veasley. asserting Instead, he sent 26 letters viewed everyone innocence from to the Commissioner sports to the the National Basketball Association investigative person Gary He at Post-Tribune. Veasley mother ask could have enlisted his revealing alleged perpe- submit sworn affidavit robbery simply asserting that he trator of or never anyone spoke representing with Ann Bowe or her. any attempted. no There is indication this majority's ruling Thus, the favorable on Love's ineffec- seriously claim dilutes the tive assistance of counsel sufficiency requirements post-conviction aof motion evidentiary hearing. an for *36 I agree 88. with the majority's statement the ¶ v. standard of review.7 (quoting State 26 Majority op., ¶ Allen, 9, 106, 568, 2004 WI 274 2dWis. 682 N.W.2d ¶ 433). The Allen court's subsequent reference to "the five 'h;' is, what, 'w's' and the one who, when, where, how," Allen, why, 568, 23, 274 2dWis. ¶ intended to assist a defendant in alleging sufficient material facts to entitle the to defendant relief. It however, must be acknowledged,
¶ statements with the "w's" "h" five and the one not be may in sufficient to justify hearing, they themselves a if are as presented statements ultimate fact in a conclusory manner without any supporting detail. 90. To the illustrate consider the problem, again in
Bentley case which the defendant contended that he entered his guilty pleas gave after counsel erroneously
7 Allen,
568,
9,
274 Wis. 2d
states:
postconviction
alleges
a
Whether
defendant's
motion
suffi
hearing
cient
facts
entitle the defendant
to a
for the relief
First,
requested is a mixed standard of review.
we determine
alleges
whether the motion on
face
its
sufficient material facts
that,
true,
if
the
would entitle
defendant
to relief.
a
This is
question
Bentley,
[State
of law that
de
v.
we review novo.
201 Wis.
(1996)].
[303,]
[682
2d
309-10
N.W.2d433
If motion
the
raises such
facts,
evidentiary hearing.
circuit
the
court must hold an
at
Id.
State,
(1972).
310;
489, 497,
v.
2d
Nelson
54 Wis.
7. The minimum
date,
approximately
years
13
parole eligibility
a
is
parole
4
nor the
board
Neither
court
months....
the minimum
adjust parole eligibility
can
a
date below
years and 4 months....
approximately
13
questionnaire
plea
or
Nothing
plea
8.
in either the
misunderstanding
of the
colloquy disabused defendant
eligibility.
of parole
Bentley, Summarizing allegations, Attorney these Bentley Olshan with before the plea plea discussed He information about gave Bentley specific hearing. Olshan him Bentley claimed that told parole eligibility. first-degree convicted of intentional homicide person 11 If years, for in 5 months. this eligible parole true, by the information was incorrect statement were that he years. Attorney almost two Olshan admitted he to Bentley promised only try get talked to but said 4 under "old law." years, months parole eligibility This, court could not too, was incorrect because the years, from 13 adjust eligibility downward parole attorney Bentley by misinformed his months. allegedly eligibility, parole influenced his and this about Bentley guilty pleas asserts that he entered because attorney. only pleas told of what he was because today's majority opinion, Bentley ¶ 92. Under why, probably who, what, where, when, met testify Certainly, test. he asserted what he would how Attorney testify hearing would to. at a and what Olshan injury relying specific claimed from defective He alleged. alleged more than Love information. He much Why Bentley's today's majority motion fail under would opinion? majority The seems oblivious to two tran- specificity "[t]he principles: First, nature and
scendent necessarily required supporting differ of the facts will Bentley, Second, 2d at 314. from case to case." Wis. "conclusory allegations" Allen, 274 are not sufficient. *38 ¶ 2d 9. Wis. Veasley
¶ If in this 94. we focus on as "who" nothing him. are told case, are told about We we got nothing he his information. We are told about how say evidentiary nothing he at an about what would proof. hearing the burden of at which Love would have Dorothy about her conversation Even Love's statement hearsay. Veasley is unsworn with "who," Ann there If we focus on Bowe as nothing support that she did not is conclusion Veasley Veasley except investigate not the fact that was Veasley Failure to call as a witness called as a witness. support inference that Bowe never inter- not an does good not to inter- him or didn't have a reason viewed Dorothy all, Love admits that when she view him. After attorney, "they Veasleyto Love's she was told mentioned Veasley." Veasley not The fact that was know about Mr. sign may that he lacked a witness be called as credibility, testimony in would have been or that his testimony Mary Jones, or that direct conflict with Attorney strategic had some other reason for not Bowe Veasley," already calling him. If knew "about Mr. Bowe gained information from her own must have this she Veasley investigation or or because someone like Love attorney told her. The assertion she or the district Veasley conclusory investigated simply a alle- never gation supported not with additional that Love has facts. I that the stated, For the reasons conclude allege claim of
defendant failed to sufficient facts entitled to an ineffective assistance counsel be hearing right. sup- evidentiary a matter of as Without porting facts, hard to believe that Ann Bowe did not it is knowing investigate Veasley. any In event, without Veasley say, justification for a there is little what hearing. would not
I further conclude that the circuit court did erroneously denying discretion in Love's exercise its hearing. request evidentiary for an
HHHHHH presents for the court 97. Love a second reason hearing newly evidentiary to hold an discovered evi- — consisting Christopher of a affidavit from dence sworn Hawley, facility prisoner a fellow at corrections Hawley he an inmate Oklahoma. swore that when was Bay Institution, he at the Green Correctional Floyd *39 prisoner Smith, Jr., Lindell named housed with concerning depth] [in to me details what who "disclosed [the he had done and committed this Offense and how just robbery] Bad and that it was too Glenn Robinson weight upon Love in the matter had fell Mr. that the willing Hawley added that he was such a manner." polygraph he invited the district test, and take a attorney's informa- him for additional office to contact tion. easy my evidence is not as view, In this "new" Veasley Although Jerees statement. as the
to dismiss Floyd give Hawley Lindell of what does not details swears that him, he nonetheless Smith, Jr. said to committing crime of the individual confessed named Undoubtedly, Haw- was convicted. which the defendant against testify ley Smith on the basis at a trial could admissions. Smith's troubling ele- Nonetheless, there are some newly First, the evidence. the discovered
ments to including give crime, details of the does not affidavit they driving, car whose involved, who was who else was using, the valu- the robbers did with and what were partici- not exclude the Second, the affidavit does ables. robbery. pation Third, Love in the of Lisimba misspells Robinson as name of Glenn affidavit way exactly Love same Robinson, in "Glen" routinely misspells Fourth, name. Robinson's himself Hawley having Love, could matter with discussed the any depth of the details" he has "in have obtained robbery from Love himself. majority opinion to disclose that fails 100. The
Floyd Love. of Lisimba Smith, Jr. is the cousin Lindell part The fact that of Love's own submission. This fact is Floyd on October Smith, Jr. was arrested Lindell weapon part carrying of the is also a concealed 1999, for Significantly, that he told authorities Smith record. (which Street, Milwaukee 2818 North 37th lived at days address), a few when he was arrested own Love's bluntly, robbery. was not Lisimba Love Put after the forthright he did not because motion to the court in his living acknowledge same men were that the two *40 robbery, house at the time of the and neither the majority acknowledges possibil- defendant nor the ity Floyd Smith, that Lindell Jr. learned details of the robbery directly possibility from Lisimba Love or the robbery that Smith committed the with Love. my In view, the circuit court should have up Hawley followed on the information in affidavit, notwithstanding hearsay quality. Why? its In sentenc- ing Judge Love, Circuit Bonnie Gordon broached the possibility people that three were involved in the Rob- robbery. police, inson In her interview with Milwaukee Mary present Jones stated that "Dee" was at Junior's Bar with three other men. Effrim Moss, Z. Love's guilty robbery, co-defendant who was found not of the robbery also Love relative. The Robinson could "family" enterprise. Against have been a ground, this back- possibility Floyd there is a real Lindell knowledge robbery, Smith, Jr. has actual of the whether participated or not he it, and whether or not Love participated in it.
¶ 102. The circuit court could have an issued attorney's order to show cause to the office, district asking why evidentiary hearing an should not be held Hawley's permitted affidavit. This would have attorney's investigation district office to conduct an Hawley included conversations with and Smith hearing. before a decision was made on a majority prelimi- 103. The doesn't wait for such evidentiary hearing Hawley naries. It orders an on the coming grips likely affidavit without to with what is happen. proof How will Love meet his burden of at hearing? happen right What will if Smith asserts his preparatory remain silent? There needs to be effort hearing. majority before the court holds Because the sufficiency require- seriously disagrees dilutes the hearings, evidentiary post-conviction I re- ments for spectfully dissent. that Justice JON I to state am authorized *41 joins opinion. this
E WILCOX