Alphonso Willis appeals his jury-trial conviction of first-degree intentional homicide and being a felon in possession of a firearm. He raises several claims for a new trial and also asks for resentencing. The court of appeals rejects the resentencing claim and some of his complaints of trial error, but concludes that he is entitled to a Machner hearing on his trial counsel’s (1) failure to present testimony that his boots did not match the prints left at the scene and (2) failure to introduce evidence that the homicide occurred at a time when he had already left the vicinity.
The murder happened in a Milwaukee apartment in March; the state’s case relied heavily on a set of boot prints found in the snow leading away from the apartment. The state introduced no expert testimony; instead it showed the jury photos of the prints and also presented the boots Willis was wearing when he was arrested a few days later, and urged them to use their “layperson” understanding to conclude that the prints matched the treads. (¶¶18-21). And, in fact, during deliberations the jury requested and was permitted to see the boot print evidence again, and shortly thereafter convicted. (¶33). In his postconviction motion, Willis presented the opinion of an experienced forensic analyst, who concluded that the boot could not have made the impressions in the snow. (¶28). On this basis he argues his trial counsel was ineffective for failing to investigate or challenge the state’s boot-print evidence. (The trial court denied this, and all claims, without a hearing.)
The state responds that despite visually apparent differences between tread and impression, there are “a host of possible explanations” for these differences; it also contends, implausibly, that expert testimony on footprints is never permissible because a jury can figure such things out for itself. (¶37). The court agrees with Willis’s observation that such an argument “calls into question why the Wisconsin State Crime Lab’s Footwear Identification Unit exists,” and concludes such testimony could have been admissible. (¶38). Accordingly, it remands for a Machner hearing on whether Willis’s counsel performed deficiently, and whether any deficiency prejudice Willis.
The court reaches a similar conclusion about evidence, never introduced, that the victim made two phone calls fifteen minutes after Willis had allegedly killed her and when various testimony placed him some distance from the apartment where the homicide occurred. (¶¶41-47).
The court rejects Willis’s argument that he should get a new trial or a Machner hearing because the state’s boot print evidence should not have come in at all. Essentially, the discussion illustrates to the familiar principle that a fact-finder is not required to credit an expert’s opinion; thus the fact that Willis’s expert says the boots did not make the prints doesn’t make evidence about the alleged match inadmissible. (¶¶50-67). Nor was the state prohibited from arguing that there was a match, despite the lack of any direct testimony on the matter. (¶¶68-73). Nor does the new expert testimony amount to “newly discovered evidence” entitling Willis to a new trial outside the ineffective assistance rubric; in the court’s view, the expert’s opinion amounts to a new assessment of the significance of already-known evidence. See Vara v. State, 56 Wis. 2d 390, 394, 202 N.W.2d 10 (1972). (¶¶74-78).
The court finds no merit in Willis’s State v. Gallion claim, concluding the sentencing court adequately covered the three mandatory factors as well as other relevant matters. Finally, it rejects his argument that the jury should not have heard about his status as a felon (for the felon in possession charge); under State v. Nicholson, 160 Wis. 2d 803, 805, 467 N.W.2d 139 (Ct. App. 1991), a defendant is entitled to stipulate to prevent the jury from learning the nature of the felony, not to keep it from hearing evidence that there is a felony conviction at all. (¶¶90-93).